In this article, Shivendra Pandey of NLUO discusses how to use the legal system to stop the menace of the of fake news.

Introduction

India a country with more than 50,000 newspapers, 400 news channels, thousands of online news portals, lakhs of blogs, social connection platforms, and countless other news feed sources. In the present world people are constantly exposed to different news feeds from different sources. It is difficult for a reader to know the authenticity of any such feeds and condition becomes more grave when it is published by a news disseminating source. A lot of times they fall prey to such fake news.

“Internet” is a world in itself, innumerable data is being circulated every moment called as cyber traffic. A significant part of this data is in form of news making people aware of happenings all around the world. There are chances that individuals come across a lot of fake news. All nations all around the world in some way or the other witness fake news but it is the responsibility of the government to take appropriate steps to curb such news. In a democratic country like India media acts as the fourth pillar of democracy. Even before independence Newspapers like Kesari, Vande Mataram played a key role in awakening and strengthening the freedom struggle. But with the advent of technological advancements T.V news channels, online media became the main source for instant and breaking news. We see a lot of news and information trolling all over the internet and especially social media like viral whatsapp hoaxes. There have been many instances where news have been declared spurious and fake. Some of the recent most controversial fake news cases in India and legal recourses available against such fake news are discussed in this article.

JNU Student Najeeb Jung searching for ISIS

There was a news in the media about Najeeb Ahmed a JNU student on the frontpage of a newspaper stating that he was searching about ISIS on internet about lSIS online which caused a huge hue and cry all over the media and internet as well the boy had had to face lot of criticism. However, later it was found by the police that there was no record of such online searches and police expressly denied veracity of the news. Even after such findings by the police there was no apology, clarifications or response made by the Newspaper and this news is still trolling on social media. Such irresponsible behaviour of news portals can put lives of the people in peril.

New Indian Currency notes with inbuilt chip

During the Indian currency demonetisation process when new notes were going to be introduced in the economy a lot of news channels carried stories like “New Rs 2000 Notes with GPS Chip”. Later RBI had to pass clarification that no such inbuilt chips have been installed in the new notes.

Why there are no Muslim Characters in Film “Bahubali”?

Recently, a viral photo on WhatsApp suggesting that Newslaundry‘s Madhu Trehan had an issue with the ‘Baahubali’ film as it did not have any Muslim characters and the makers need to answer this. It trolled all over the social media. Especially on the right-wing news sites and social media. However, Trehan vehemently denied the veracity of any such statements. The above-mentioned image kept trolling all over media. It was  Alt News in a piece which pointed out that Trehan had never said any such thing.

How to curb this menace of Fake news? What are the remedies available?

Complaint Indian Broadcast Foundation

IBF was established in 1999 to fulfill the Simple Need. At present 650 Channels has been broadcasting 24×7 365 days. To look after and regulate these channel’s IBF has founded. If anyone wants to complaint against any TV Channel than IBF will solve these problems.^[1]

If any channel under the IBF broadcasts any kind of serial which promotes smoking, abuse or any kind of violent activities then user can register complaint to IBF India via online or offline mode by Filing a Complaint Form. Complaint Form in English-http://www.ibfindia.com/sites/default/files/pdf/Complaint_Form_BCCC.pdf

Complaint Form in Hindi-http://www.ibfindia.com/sites/default/files/Complaint_Form_hindi.pdf

Online Complaint Form Link is http://www.ibfindia.com/node/2

Complaint to National Broadcasting Standards Authority

The News Broadcasters Association (NBA) is a body representing the private television news & current affairs broadcasters. It is the collective voice of all the news & current affairs broadcasters in India. It is funded completely by its members.

Presently NBA has 23 leading news and current affairs broadcasters as its members (consisting of 62 news and current affairs channels) as its members. The NBA acts as a unified and credible voice before the Government, on matters affecting the industry. A person can file a complaint against any of the members of the NBA.^[2]

Complaint to Broadcasting Content Complaint Council

A Complaint can be filed against any objectionable T.V content or fake news to Broadcasting Content Complain Council if it incites communal disturbance, violence against women or gender specific, child abuse, contains coarse scenes of violence, criticizing any religion, creates superstition, encourages consumption of drugs or any other prohibited product etc., For more details please follow: https://blog.ipleaders.in/how-to-file-a-complaint-against-objectionable-television-content-in-india/.

Complaint under Section 153 or 295 of IPC

If a fake news can be termed as hate speech, in that case, an FIR can be filed under 153 (Wantonly giving provocation with intent to cause riot) and 295 (Injuring or defiling place of worship with intent to insult the religion of any class) Indian Penal Code.

Civil or criminal suit for Defamation

If a person finds a fake news defamatory he/she can file a civil or criminal case for defamation. For more information follow: A guide to civil and criminal cases of defamation.

What steps can be taken?

At present India doesn’t have any separate legislation to deal with instances of fake news. As many scholars and eminent organisations have suggested creating an ombudsman body to regulate and cross-check the activities of Indian media especially the news segment. Further the existing bodies like PTI, NBSA, Broadcasting Content Complaint Council, needs to make structural changes and take stern actions against the News agencies, online portal and other news disseminating sources violating the rules passed by these bodies. Further, there should be strict and expeditious implementation of all the actions taken by these bodies to deter any future mischievous acts. Even the courts should ensure speedy justice to all the grievances against any fake news circulating bodies.

We need to establish institutions like “Cross Check” (a consortium of 37 publishers mainly from Britain And France) which acts as a watchdog to keep the media accountable as well as formalisation of news and information through social media. It is necessary to take concrete steps in order to eradicate this menace. News agencies and other information sources have far reaching effects on all spheres of our life. It acts as a guiding source for public as well as the government, it has immense power.

References

^[1] BF India (BCCC) Customer Care Contact Phone Number, Office Address, Email Id, Accessed on 8 May 2017, Available at:http://customercaresupportinfo.in/ibf-india-bccc-customer-care-contact-phone-number.html.

^[2] News Broadcasting Association, About us, Accessed on 8 June 2017. Available at: http://www.nbanewdelhi.com/about-nba.

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In this article, Karan Singh of JGLS discusses all you need to know about the admissibility of Dying declaration.

Introduction

Dying declaration is the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death.

In Section 32(1) of the Evidence Act, the only statement that is given just before the death is dying declaration. Also, the statement that is given before and which explains the cause of death is also dying declaration. A person who is conscious and knows that death is about to happen can make a statement about the reason of his/her death will be admissible in the court. The word dying declaration explains the word itself. It means a written or verbal statement of relevant facts made by the person who is about to die or is dead. It is the statement of a person who knew the cause of his death or the circumstances of his death. It is said that a man will not meet his maker with lying on his mouth (nemo mariturus presumuntur mentri). In our Indian Law it is a fact that is believed that a ‘dying man can never lie’ or ‘truth sits upon the lips of a dying man’.^[1]

Gestures & signs form

Gestures and signs can form dying declaration even when the victim does not speak a word. The Apex court stated that the evidentiary value of the gestures and signs will depend on certain factors like who recorded the statement, what are the gestures, what were the questions asked, were the questions asked were simple or not etc. Gestures can be difficult to interpret but this does not mean that the accuse can roam freely after hurting someone. If the victim is not able to speak, gestures or signs can be taken as evidence.

In Nirbhaya case 2013, a bench of Justices Dipak Misra, R Banumathi and Ashok Bhushan said a dying declaration should not necessarily be made by words or in writing and it could be through gestures. Not just words but even gestures can be made admissible in the court now.

Question answer form

Dying declaration should be in question and answer form.  If the dying declaration is not in question answer form it was held that it cannot be discarded for this reason alone. The Statement can be recorded in a narrative way also. It is not mandatory to record it in question answer form. But it is always best to record it in question answer form as that will make the evidentiary value of the dying declaration more.

Fitness Of the victim should be examined

While recording the statement of the victim, it is very important to examine the health of the victim. It can be possible that he is making stories in the presence of drugs given. Judicial Magistrate should satisfy himself that the victim is in a fit condition to give a statement. A certificate should be obtained by the judicial magistrate from the doctors examining the victim.

This certificate can prove in court that the statement given was in fit condition and it is true. If the circumstances do not permit attendance of the medical officer, then judicial magistrate can record statement without the medical certificate but judicial magistrate should provide the reason why he considered it indivisible for a doctor’s attendance.

Who should record the dying declaration

If the dying declaration is recorded by the magistrate, then it will hold more evidentiary value than any other dying declaration. Doctors and police officer are also authorized to record the dying declaration if the magistrate is not present. But sometimes the situation arises where dying declaration recorded by the magistrate can be questioned. For example, If the magistrate records it even when the doctor does not approve the victim medically fit. In this situation, the evidentiary value of the dying declaration can be questioned.

The court always looks into the certain things to decide the value of the statements. The court always seeks if the victim was mentally fit while giving the statement. If the victim is not fit at the time of giving a statement then that statement won’t hold any value.

Confusion can occur while recording dying declaration as anything can effect its evidentiary value. It should be taken with precaution and keeping in minds the following points:

1. The victim should be mentally fit to given statement. A medical certificate should be given by the doctor about her health.
2. Doctors and the Police officer can record the statement but it is best if a magistrate records it.

In 2013, Delhi gang rape three dying declarations of Nirbhaya were recorded.^[2] The first was recorded by the doctor when she was admitted to the hospital, the second was by SDM during which she gave exact details of the crime and the third one was recorded by a metropolitan magistrate and was mostly by gestures.

In this case, all three dying declarations were recorded. But the one recorded by the magistrate was important. And the court did accept the dying declaration recorded by magistrate even when it was in gestures and nods.

In Kushal Rao v State of Bombay^[3], The Supreme Court Of India accordingly states that the court must be satisfied that the deceased was mentally fit to make the statement. And victim had the opportunity to observe and identify the accused. The victim should not be making the statement under any influence. Also, Supreme Court Of India held that once the court is satisfied that the dying declaration is true, the conviction can be upheld and there is no need for further corroboration.

If the dying declaration is recorded by the medical officer or police officer, it should be attested by one or more person that is present there.

Language Of Statement

As far as possible the statement should be recorded in the language of the declarant or the court language. The court cannot discard the dying declaration on the basis of the language. It can be recorded in any language. Even if the deceased made the statement in Urdu, Hindi, Punjabi languages, it was held that statement could not be discarded on the ground of language alone or on the ground that it was recorded in Urdu. Where the statement was in Urdu and the magistrate recorded it in English but the precaution was taken in explaining every statement to the deceased by another person, it was held that the statement was the valid dying declaration.

Points to remember

1. Dying declaration can be recorded in any language.
2. If the statement was in another language than the one which magistrate recorded, then precaution should be taken.
3. The court cannot reject or discard the dying declaration on the sole ground of language.

In Biju @ Joseph Vs State Of Kerala^[4] it was held by the court that merely on the ground that the statement of the deceased was in her own language can not vitiate the dying declaration. It was stated by the High Court Of Kerala :

“Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We bear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such   translation process would not upset either the admissibility of the statement or its reliability”

Multiple dying declarations

Supreme Court Of India held that multiple dying declarations can be relied upon without corroboration if there is consistency in all the dying declaration. If all the dying declarations are similar to each other than it can be admissible.^[5]

But if the dying declaration is different from each other than the court will examine the facts of the case or can examine the statement of other witnesses to ascertain the truth of the case.

The statement of the deceased should match the facts of the case. It is very important to understand the nature of dying declaration. Points to remember in multiple dying declarations:

1. Consistency in all the dying declaration should be there.
2. If all the dying declaration does not match, then the court will examine the facts of the case with the dying declaration Or examine the witnesses.

In Kushal Rao v state of Bombay^[6], this case set the importance of dying declaration and what is the right process to record it. In this case, if the dying declaration is recorded in question-answer form, if the medical certificate is given by the doctor, if it is recorded by the authorized person, then it is admissible and reliable. If there are multiple dying declarations, then court looks into all these points to see which dying declaration holds more evidentiary value.

The Supreme Court has held that multiple dying declarations can be relied upon without corroboration if consistency is maintained throughout. Otherwise, the courts would have to examine the statement of other witnesses to ascertain the truth in a criminal trial.

An Expectation of death not necessary

Under English Law, the victim should not be under any expectation of death. Evidence Act has taken this law from English law. If the statement has been made even when no cause of death had arisen then also the statement will be relevant. It is not important at all that the statement recorded should be just before the death of the victim.

In Pakala Narayan Swami v Emperor^[7], it was held that the letter given by the deceased to his wife before going to the place where he was killed was relevant. The court said that the statement made must be at any rate near death or the circumstances of the transaction explaining his death is relevant under section 32 of Evidence Act. In this case, the court stated that dying declaration can be any statement that explains the cause of death or the circumstances of the transaction explaining his death. Hence, statements as to any of the circumstances of the transaction which resulted in the death would be included.

F.I.R as dying declaration

When an injured person lodges a FIR and then dies, it was held that the FIR will be relevant as a dying declaration.

 In Munnu Raja and another v. State of M.P.^[8], the Supreme Court Of India held that statement by injured person recorded as FIR can be treated as dying declaration and such statement is admissible under Section 32 of Indian Evidence Act. It was also held that dying declaration must not cover the whole incident or narrate the case history. Corroboration is not necessary for this situation, Dying declaration can be the sole purpose for conviction.

If declarant does not die

The question arises when the dying declaration is recorded and the declarant does not die. The statement is only converted in dying declaration when the victim/ declarant dies. If the declarant does not die, then the declarant can be used as a witness in the court against the accused. It is said that the dying declaration is only recorded on the presumption that the declarant is about to die. And the declarant won’t lie just before dying. But if the declarant does not die then the statement can’t be admissible as dying declaration.

Conclusion

Dying declaration is one of the most important evidence that is admissible in court as dying declaration can be a sole purpose for conviction of accuse. Hence, it should be recorded carefully with all the procedure that the court has mentioned. It should not be tampered at all by anyone. If the dying declaration is incomplete, then it is very much to be rejected by the court. It is on the court discretion to check if the dying declaration is recorded carefully or not.

^[1] http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_P9S0NL6U.PDF

^[2] State Vs. Ram Singh and another.

^[3]  Kushal Rao vs The State Of Bombay on 25 September 1958 AIR 22, 1958 SCR 552

^[4] Biju Joseph vs State Of Kerala Represented By on 14 February, 2011

^[5] http://www.deccanherald.com/content/336207/multiple-dying-declarations-can-relied.html

^[6] Kushal Rao vs The State Of Bombay on 25 September 1958 AIR 22, 1958 SCR 552

^[7] Pakala Narayana Swami vs Emperor on 19 January, (1939) 41 BOMLR 428

^[8] Munnu Raja and another v. State of M.P., 1976 AIR (SC) 2199

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In this article, Shagun Bahl discusses the fundamental provisions of the Protection Of Children From Sexual Offences Act, (The POCSO Act, 2012). A short guide to The POCSO Act.

Sexual abuses on children are a big blot on society at large as it shook’s the human consciousness of the society and retard the normal healthy growth of children. It leads to grave physical and psychological effects on the body and mind of a child and dismantles the normal growth of a child. It does not leave only physical injuries on the body but also leaves an everlasting scar on the child’s mind at a very nascent age. POCSO ACT has been birthed out of the very need to enact a specific legislation to tackle with the increasing sexual abuse against children in form of abuses like rape, pornography, various forms of penetration and criminiliases acts of immodesty against children too.

Child Sex Abuse is considered as the most heinous crime which can be done to a child as the offender of these crimes knows that the forced sex which they are doing with the child is by leashing child’s vulnerability and trust and is exposing to child under grave trauma which is not just a physical attack on its body and private parts but also disturbing a child’s mind so blatantly that it can take a lifetime for the child to feel normal ever after that abuse.

What is Child Sexual Abuse?

World Health Organization (WHO) defines child sexual abuse as, ‘inappropriate sexual behavior with a child’ and ‘involving a child in sexual activity that he or she doesn’t fully comprehend, is unable to give informed consent to, or that violates the laws and social taboos of society.

In Short, following actions are considered as Child Sexual Abuse

(According to a report by WHO)

• Fondling a child’s genitals
• Making the child fondle the adult’s genitals
• Intercourse, incest, rape, sodomy, exhibitionism and sexual exploitation
• Inducement or coercion of child in unlawful activity.
• The exploitative use of child in prostitution or other unlawful sexual practices
• The exploitative use of children in pornographic performances and materials.

The effects of child sexual abuse can include:

• Depression
• Post traumatic stress disorder
• Anxiety
• low self esteem
• propensity to further victimization in adulthood
• physical injury to child
• Psychological trauma

Law before POCSO Act, 2012

Child sex abuse crimes before the enactment of POCSO Act were dealt under Indian Penal code. Child Sexual abuses were prosecuted under Indian Penal Code under following sections

• P.C (1860) – Sec 375 Rape
• P.C (1860) – Sec 354 Outraging the modesty of women
• P.C (1860) –  Sec 377 Unnatural Offences

 The I.P.C. was not adequate enough to protect the children and criminalize non- conventional sexual abuses which are different from above mentioned conventional crimes in form of child trafficking, pornography , sale of children.

There were several loopholes in the IPC which could not effectively protect the child due to various loopholes like:

• IPC 375 doesn’t protect male victims or anyone from sexual acts of penetration other than “traditional” peno-vaginal intercourse.
• IPC 354 lacks a statutory definition of “modesty”. It carries a weak penalty and is a compoundable offence. Further, it does not protect the “modesty” of a male child.
• In IPC 377, the term “unnatural offences” is not defined. It only applies to victims penetrated by their attacker’s sex act, and is not designed to criminalize sexual abuse of children.

The Protection of Children from Sexual Offenses Act, 2012

Reasons for Enactment of POCSO Act, 2012

The very inadequacy of Indian Penal Code and absence of any stringent legislation for effectively addressing and tackling heinous crimes such as sexual exploitation and sexual abuse of children birthed the commencement of  POCSO ACT as the very intention of Government establishments was to protect the children from offences of sexual assault, sexual harassment and pornography and to facilitate adequate legal machinery by establishing special courts for trial of such offences and matters incidental connected with child sexual abuse crimes. This was in due compliance of Article 15 of Constitution of India which mandates the states to protect the children of this nation and in lieu of United Nations Conventions on the Rights of the Child which prescribes the set of standards to be followed by state parties in securing the best interest of the child.

Commencement of POCSO ACT, 2012

The Protection of Children from Sexual Offences Act, 2012 received the President’s assent on 19th June 2012 and was notified in the Gazette of India on 20th June, 2012.

The preamble of POCSO Act emphasis that child protection legislation like POSCA is necessary for proper development of child so that his or her right to privacy and confidentiality will be protected and respected by every person by all means and through all stages of judicial process involving a child.

POCSO ACT makes it imperative that child protection is given paramount importance to ensure holistic development of child’s physical, emotional, intellectual and social faculties.

 POCSO ACT mandates the state parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent –

• The inducement or coercion of a child to engage in any unlawful sexual activity;
• The exploitative use of children in prostitution or other unlawful sexual practices;
• The exploitative use of children in pornographic performances and materials;

Seven most important features of The POCSO Act, 2012

1. POCSO ACT defines a child as a person under the age of 18 year. It encompasses the biological age of the child and remains silent on the mental age considerations.
2. It recognizes all forms of penetration other than penile-vaginal penetration and criminalizes acts of immodesty against children too.
3. With respect to pornography, this act criminalizes even watching or collecting pornographic content involving children under Sec 15 of the Act and shall be punished with imprisonment of either description which may extend to three years or with fine or both.
4. This Act makes abetment of child sexual abuse an offense under Sec 17 of the act and is punishable under Section 18 of the act with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence or with fine or with both.
5. It also provides for various procedural reforms under Sec 19-22 of the Chapter V under the Act making the tiring process of trial in India considerably easier for children. The procedural formalities of reporting the case to Special Juvenile Police has made it easier to report child sexual abuse cases in a prompt and hassle free manner.
6. Under Sec 20 of the act under chapter V makes it obligatory for media personnel’s and personnel employed by hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police so that such sex abuse offenders’ can be tracked down by police immediately.
7. However, This Act also has been criticized as its provisions seem to criminalize consensual sexual intercourse between two people below the age of 18 and take the personal liberty of adolescents to indulge in consensual sex and youngsters who indulge in sexual activities will be prone to further harassment from family members, police and society. This new legislation has reignited the debate over the validity of rationale behind age consent laws and the harmfulness of adolescent.

THE STATISTICS OVERVIEW BY SAVE THE CHILD ORGANISATION BIG PICTURE OF POCSO ACT ACROSS INDIA

As per the data collected by Save the Children, India it has shown that recently, the new child protection legislation like the Protection of Children Against Sexual Offences Act (2012) has given more teeth to fighting child rights violation.

The number of cases registered for child abuse raised from 8,904 in the year 2014 to 14,913 in the year 2015, under the POSCO Act. Sexual offences and kidnapping  account for 81% of the crimes against the minor as preventive measures designed to ward off strangers (installing CCTV cameras and providing self-defense training) will be ineffective, as children do not know how to ward off unwanted sexual advances from their known relatives, acquaintances or workplace seniors they trust.

POSCO – State wise cases –

• Uttar Pradesh led the highest number of child abuse cases (3,078)
• Madhya Pradesh (1,687 cases)
• Tamil Nadu (1,544 cases)
• Karnataka (1,480 cases)
• Gujarat(1,416cases).

REVIEW OF POCS0 2012

POST ANALYSIS of POCSO ACT,2012 byhttp://www.satyamevjayate.in/child-sexual-abuse/reviewing-pocso.aspx  has concluded in its review that most states have not yet notified special courts or appointed special public prosecutors. Cases of offences against children are therefore still being brought before regular criminal courts, thus denying children their right to a child-friendly system and structure.

Moreover, the act has raised the age of consent from 16 to 18 years without considering scientific evidence on adolescent sexuality. Children involved in sexual activity will be treated as juveniles in conflict with the law. In cases of consensual sexual relationships between those in the age group of 16 and 18 years, how can we distinguish between the victim and the perpetrator.

Implementation of The POCSO Act, 2012

 The effectiveness of a law depends largely on the people responsible for its implementation and application. State governments will have to ensure that all the requirements specified under the law are in place and all key stakeholders will have to internalize the core principles of child rights in order for the law to work.

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In this article, Shweta Kumari of Lloyd Law College discusses how to register cooperative societies in Delhi.

The article will cover the following points –

1. REQUIREMENT AND PROCEDURES
2. CONDITION OF ENROLLMENT OF MEMBER
3. ROLE OF REGISTRAR
4. KINDS OF SOCIETIES COULD BE REGISTER UNDER REGISTRAR COOPERATIVE SOCIETIES
5. TIME SCHEDULE OF REGISTRAR COOPERATIVE SOCIETIES
6. METHOD OF DEALING WITH THE COMPLAINTS
7. NGO-SOCIETY FORMATION
8. DOCUMENTS REQUIRED FOR THE STATE LEVEL
9. DOCUMENTS REQUIRED FOR ALL INDIA LEVEL
10. HOW A CLASS CONFLICT IN A NOIDA HOUSING SOCIETY ASSUMED COMMUNAL TONES
11. GOVERNMENT HOUSING
12. SOME HOUSING FACILITIES

INTRODUCTION

The registrar cooperative societies, appointed by the  Lt .governor, Delhi under Delhi cooperative societies act 2003, heads the cooperative department and plays a pivotal role in monitoring the functioning of cooperative societies registered under the act. The LT. Governor also appoints other persons to assist the registrar and has designated them as joint registrar, deputy registrar, assistant registrar and other ministerial staff. The office of the registrar is working on eight-section pattern and has eight sections headed by assistant registrar level officers. Each section handles the matters of various cooperative societies on the basis of their registered office located in that particular section. All issues concerning in particular society are examined at the section level only. [1]

REQUIREMENTS AND PROCEDURES FOR THE REGISTRATION OF NEW SOCIETY

The application or proposal for registration of society should come from promoter members who belong to different families but are residents of Delhi only. The proposal should also mention the specific scheme indicating that the proposed society will be viable and will ensure promotion of economic interest of the member.

DOCUMENTATION AND PROCEDURES

The complete set of registration papers can be obtained from the office of the Delhi state co-operative union, 31, Netaji Subhash Marg on payment of prescribed fees. The applications along with schemes initially received from the chief promoters and are scrutinised by the Dept. To ensure:-

• The viability of a society.
• Its conformity with Delhi co-operative societies act and rules.

The required documents are as follows:-

• Model by laws ( 4 copies )
• Enquiry Performa
• List of promoter members.
• Copy of promotional meeting resolution resolving name of the society, value of share money, admission fees, liabilities, total number of members of managing committee, annual submission fees, etc.[2]

MAIN CONDITIONS OF ENROLMENT OF A MEMBER IN A CO-OPERATIVE SOCIETY

A resident of Delhi can become member of the society if he or she fulfils the conditions laid down in registered by laws of different types of societies. The person can become member on an industrial or transport society if he or she is actually engaged in their respective field and he or she should not be member of other society of similar activities. But in case of housing societies, an applicant for membership should not have any flat in their name or in the name of any dependent member of their family and should also be resident of Delhi for minimum period of 3 years on the date of application.

ROLE OF REGISTRAR

From the registration of co-operative societies till the cancellation of its registration, the registrar acts as a friend philosopher and guide to the co-operatives registrar order to ensure that the co-operative societies function in accordance with the provisions of Delhi co-operative act, rules, bye- laws, and govt policies. The main functions of registrar are as under:-

• Registration of co-operative societies.
• Amendments to the bye –laws of co-operative societies.
• Amalgamation, division and re-organisation of co-operative societies.
• Conduction election of managing committee in primary co-operative banks and federal co-operative societies.
• Regulation of investment of funds by co-operative societies as per act $ rules.
• To conduct audit and inspection, handle enquiries and fix surcharge on negligent functionaries of co-operative societies.
• To settle disputes of co-operative societies through the process of arbitration.
• Function as an appellant court.
• Enforcement of orders, awards and decrees of various courts.
• Winding up and cancellation of registration of non functional societies.
• To operate co-operative education fund for training, education and carry out publicity program to strengthen co-operative movement in the N.C.T of Delhi.
• To frame Delhi co-operative societies rules, 1973 from time to time.
• To issue directive for the promotion of business of different categories of co-operatives.
• To verify membership in housing co-operative for allotment of plots.
• To frames, execute and monitor various welfare schemes approved by the central govt including financial assistance to various sectors co-operatives.[3]

KIND OF SOCIETIES COULD BE REGISTER  UNDER REGISTRAR COOPERATIVE SOCIETIES

• Thrift and credit co-operative societies.
• Urban co-operative banks
• Industrial co-operative societies.
• Labour and construction cooperative societies
• Motor transport cooperative societies
• Consumer cooperative societies
• Marketing cooperative societies
• Co-operative federations
• Group housing societies.
• Security service cooperative societies
• Cooperative societies formed by professionals in the areas like IT, education art $ culture, insurance, women empowerment etc.

TIME SCHEDULE OF REGISTRAR COOPERATIVE SOCIETIES TO APPROVE THE NEW COOPERATIVE SOCIETIES

The time schedule for disposed of various applications received from societies are detailed below:-

1. Approval of proposal for registration of a new co-operative society 30 days.
2. Amendment in bye laws 60 days.
3. Maximum credit limit of the society 90 days
4. Approval of registration and enrolment of members in housing 60 days group housing society
5. Other ( miscellaneous) 60 days.[4]

METHOD OF DEALING WITH THE COMPLAINTS

When a complaint is received in the co-operative department, it is examined by the section concerned. If need be, the comments of the society concern official/non official is called for. After examination, if required, inspection u/s 54, enquiry u/s 55 or surcharge proceeding u/s 59 are ordered by the registrar. If the complaints fall in the purview u/s 60/61, the complaint is accordingly advised to file the arbitration case.[5]

NGO- SOCIETY FORMATION

A NGO or society in India can be registered either on state level or on all India level. Before registering the NGO or society you should know about the difference between both of them.

STATE LEVEL

To register the society or NGO at state level. You will have to provide the ID proof of seven members ( DL/copy of passport/ voter id ). You will have to provide two members ( president – treasurer secretary – treasurer ) from Delhi and another five member’s can be from any states. Two set of MOA of NGO or society.

DOCUMENTS REQUIRED FOR THE STATE LEVEL

• Id proof of seven members from the same state ( voter id/ driving licence/Adhaar card.
• One address proof of office premises.( Electricity bill/ water bill/house tax receipt)
• Name of the society/ NGO.
• Rest of the documents we will prepare.
• For any query please feel free to contact us.

ALL INDIA LEVEL

To register the society or NGO at all India level. you will have to provide the ID proof of nine member’s ( DL/ copy of passport/voter ID ). You will have to provide two members ( president- treasurer or secretary – treasurer ) from Delhi and another seven member’s from seven different states. Two set of MOA of NGO or society.[6]

HOW A CLASS CONFLICT IN A NOIDA HOUSING SOCIETY ASSUMED COMMUNAL TONES

The events at the NOIDA housing society called MAHAGUN MODERNE  started out as a class conflict protects over a domestic worker being allegedly locked up but has ended up with the same old Bangladeshi bogey. The society has now reportedly decided to ban Bangladeshi worker from entering the complex, and the slum cluster near sector 78 NOIDA where many of them live is also being demolished. It’s a safe way to end the entire matter for some of the self-righteous middle and upper-class people although the good news is that some residents are protecting. Of course, the Bangladeshi tag can be used to disenfranchise Indian Muslim who happens to be Bengali speaking. The maid who was locked up is reportedly from Cooch Behar,Westt Bengal, while those who will treat the domestic worker get away scot free.[7]

GOVERNMENT HOUSING

The directorate of estates is responsible for administration and management of the office buildings for various central government organisations as well as reside accommodation for the employees in the metropolitan cities of Delhi, Mumbai, Kolkata, Chennai and five other cities.

HOUSE ALLOTMENTS

The scheme of house to central government employees is aimed at providing assistance to the government employees to acquire house of their own.

General pool residential accommodation

HOLIDAY HOMES

Holiday homes are available for all the government employees throughout India. They can avail accommodation facilities at nominal charges while touring. Ordinarily, the booking of holiday is done on ‘first come first served’ basis. The allotting authority has a right to assign priority in booking in following order:-

• Holiday homes information
• Apply online

CENTRAL GOVERNMENT EMPLOYEES WELFARE HOUSING ORGANISATION (CGEWHO)

The central government employees welfare housing organisation ( CGEWHO) has been established to promote control and coordinate the development of houses at selected places across India on no profit no loss basis as a welfare employees.

The organisation maintains skeleton project teams at construction sites which look after day to day operations of the construction and development. The goal of the government is to provide quality welfare housing services to the employees.

• Rules $ regulations
• Projects/schemes under planning

FOLLOWING ARE SOME HOUSING FACILITIES

• House building advance

The scheme to central government employees is aimed at providing assistance to them to

Construct / acquire house/ flats of their own. The scheme was introduced in 1956 as a welfare measure. The ministry of urban development $ poverty alleviation acts as the nodal agency for the same.

• EAWAS- government accommodation management system (GAMS)

The EAWAS is a government to employee ( G-2-E) e-governance tool. It has been instrumental in creating a transparent, corruption free and efficient house allotment system. It helps maintain rules $ regulation in the system and generate more revenue.

• Housing maintenance (CPWD)

Residents of government accommodation in new Delhi can lodge their complaints related to civil, electrical and horticulture. CPWD service centre download data for the complaints lodged for their service centre. It also update the status of the complaints after they have been addressed.[8]

REFERENCES

[1]   Delhi.gov.in. department of registrar societies. government of NCT Delhi.[online] available at: http://www.delhi.gov.in/wps/wcm/connect/DOIT_RCS/rcs/home/ [ accessed 22 jul.2017].

[2]   Delhi.gov.in, 23 mar.2015.registrar of co-operative societies.[online] available at: http://delhi.gov.in/wps/wcm/connect/doit_rcs/RCS/Home/FAQ [ accessed 22 jul.2017].

[3]   Supra 2

[4]   Supra 3

 [5]  Supra 4

 [6]  Supra 5

 [7]   The economic times. 2017.maids in modern India: how a class conflict in a NOIDA housingsociety assumed communal tones. [online].available at: http://economictimes.indiatimes.com/news/politics-and-nation/maids-in-modern-india-how-a-class-conflict-in-a-noida-housing-society-assumed-communal-tones/articleshow/59715317.cm. [accessed 23 jul.2017].

[8]India.gov.in,  national portal of India.2013.[online] available at: https://india.gov.in/people-groups/community/government-employee/government-housing. [accessed 23 Jul.2017]

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In this article, Himanshi Srivastava of Amity Law School, Lucknow discusses the laws regarding blocking of website.

There are various laws which regulate the working of websites. These laws are meant to regulate the content of websites in order to maintain the peace and morality among the public. A wrong content of a website can mislead public, at large. The Information Technology Act, 2000 is the statute came to prevent the cyber crimes against public. There were lots of cases of cyber attack to the mass number of people, which made a need for the lawmakers to bring a separate law statute for the cyber crimes.

There are two laws which laid down the provision for blocking the Websites

1. Information Technology Act, 2000 (Section 69 A)
2. Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009

Information Technology Act, 2000

Section 69 A: Power to issue directions for blocking for public access of any information through any computer resource-

1. Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
2. The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
3. The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.^[1]

This Section can be read as:

The central government must have a designated officer “not below the rank of a Joint Secretary” for the aim of issuing direction for blocking under Section 69. Nodal officers receive complaints on behalf of central and state governments, and after assessment, forward these complaints to the designated officer. The grievance shall be examined by a Committee of government Personnel who initially have to build all affordable efforts to identify the originator or intermediary (hosting companies/ISPs/telecom operators/Social Media sites/publications) who has hosted the data. The intermediary will be asked to look before the committee within 48 hours. The committee will consider whether or not the request is covered by 69A, and if it is, the designated Officer must submit the recommendation to the Secretary, Department of IT, who will approve such requests, which will be sent to the intermediary to block.

In cases of emergency, the blocking might occur without any hearing, and therefore the designated Officer shall bring the interim direction to the committee.

A Review Committee shall meet a minimum of once in 2 months and record its findings on whether or not directions issued are in accordance with Section 69A(1)

Critical Analysis of Section 69 A

Section 69 of the IT Act provides the government the authority to intercept/monitor/decrypt data in special situations regarding with sovereignty, unity, friendly relations with foreign states,public disorder etc. Thus, this act places India in a category where it’s comparatively easy for a govt. to get access to data, unlike US that has high restrictions on data access . The recent spat in US between Apple and Federal Bureau of Investigation over user privacy vs security has some lessons for India .

Lessons for data protection standards

India presently has low data protection standards. This has serious security and economic consequences :

1. Low data protection standards compromises the privacy and security standards of the users,
2. This discourages companies like Apple, that are believed to ensure high data protection, to produce in Indian markets,
3. Also, this offers a legal opportunity to several Indian based mostly firms to produce lower security devices by lowering their prices. This creates a negative competitive atmosphere where the businesses that ensure ignore greater security face a drawback.
4. Low encryption standards for ISPs makes them a lot of vulnerable to cyber attacks,
   Thus, India needs to adopt high encryption standards.

Lessons for data access standards

Section 69 provides govternment the power to access data under certain conditions. This discourages investors, puts users security in danger and conjointly provides a chance to state to misuse the provision.
Thus, India has to achieve a balance in setting data standard furthermore as its use for interception if needed under special circumstances by amending the specific provisions under the IT Act and bringing a comprehensive encryption policy.

Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009

In exercise of the powers conferred by clause (z) of sub-section (2) of section 87, to be read with sub-section (2) of section 69A of the Information Technology Act 2000, the Central Government hereby makes the following rules:

Blocking of information in cases of emergency

1. Notwithstanding anything contained in rules 7 and 8, the Designated Officer, in any case of emergency nature, for which no delay is acceptable, shall examine the request and printed sample information and consider whether the request is within the scope of sub-section (1) of section 69A of the Act and it is necessary or expedient and justifiable to block such information or part thereof and submit the request with specific recommendations in writing to Secretary, Department of Information Technology.
2. In a case of emergency nature, the Secretary, Department of Information Technology may, if he is satisfied that it is necessary or expedient and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing.
3. The Designated Officer, at the earliest but not later than 48 hours of issue of direction under sub-rule (2), shall bring the request before the committee referred to in rule 7 for its consideration and recommendation.
4. On receipt of recommendations of committee, Secretary, Department of Information Technology, shall pass the final order as regard to approval of such request and in case the request for blocking is not approved by the Secretary, Department of Information Technology in his final order, the interim direction issued under sub-rule (2) shall be revoked and the person or intermediary in control of such information shall be accordingly directed to unblock the information for public access.

Process of order of court for blocking of information

In case of an order from a competent court in India for blocking of any information or part thereof generated, transmitted, received, stored or hosted in a computer resource, the Designated Officer shall, immediately on receipt of certified copy of the court order, submit it to the Secretary, Department of Information Technology and initiate action as directed by the court.

Expeditious disposal of request

The request received from the Nodal Officer shall be decided expeditiously which in no case shall be more than seven working days from the date of receipt of the request.

Action for non-compliance of direction by an intermediary

In case the intermediary fails to comply with the direction issued to him under rule 9, the Designated Officer shall, with the prior approval of the Secretary, Department of Information Technology, initiate appropriate action as may be required to comply with the provisions of sub-section (3) of section 69A of the Act.

Intermediary to designate one person to receive and handle directions

1. Every intermediary shall designate at least one person to receive and handle the directions for blocking of access by the public any information generated, transmitted, received, stored or hosted in any computer resource under these rules.
2. The designated person of the Intermediary shall acknowledge receipt of the directions to the Designated Officer within two hours on receipt of the direction through acknowledgement letter or fax or e-mail signed with electronic signature.^[2]

Is Section 69 A of IT Act unconstitutional?

In Shreya Singhal vs Union of India^[3] case , Supreme court while declaring Section 66A of IT Act had kept 69A which deals with blocking the content of websites if their content harms the security and integrity of India, public order and friendly relation with other countries. However Supreme Court gave 3 guidelines to restrict the misuse of this section: The central government can resort to this section if it is fully satisfied that it is necessary to do; can be done only in cases set out in Article 19(2) of constitution; these reasons should be recorded in writing so that can be assailed in writ petition.

It is not unconstitutional, because it may be used in cases prescribed in constitution, it provided a lot of freedom to centre to misuse the provision and thereby against the spirit of freedom of expression included in constitution. The misuse arises from overall non-transparent nature to choose the character of content of a website. Procedure for approval is provided in the act itself involving senior official from ministry of law and justice, home affairs, information and broadcasting and Computer Emergency response Team of India. But the procedure can be bypassed in case of emergency. These emergency situations are not defined by the act.

Rather than clear reasons, government is more inclined to use broad terms like national security. In the face of these terms it can restrict the honest criticisms posted on a site against and disagreement with government and its policies. The cases of banning books in the name of harming culture can be used against the sites also. Also it did not opportunity to the originator to put her point or withdraw the content from website. Content on one page can be used to block the full site.

The growing use of internet for dissemination of information is a potential tool to spread information which have potential to damage the nation. But options to restrict these contents should be used in genuine cases and with proper procedure followed. Restricting criticism and research should not be part of project. Section 69A though not unconstitutional but can be arbitrarily used.The necessity is to provide transparency by putting info regarding blocking and therefore the reason for blocking in clear terms in public space in order that can be scrutinized by civil society and therefore the originator of content for further action.

Conclusion

Section 69A of the IT Act deals with the blocking of internet sites which might cause problems of national sovereignty unity and integrity. India being a rustic with non secular, cultural, ethnic, linguistic, social diversities there might be problems of each internal and external threats which will disrupt the prevailing peaceful and harmonious setup of the country. thus in the interest of the national sovereignty and integrity there’s a necessity to keep up laws like Section 69A of IT act and in no manner that’s unconstitutional.

The incidents of propagating hate speech, promoting communal dissonance, raising rumours etc are being done by anti social elements and from time to time by some sections within society for partisan gains. it is the duty of the state to protect the government to guard the people societies against such acts as they might create violence, insecurity. further with the exaggerated usage of social media the chance of such incidents has raised. terrorism is one in all major threats to the country and world nowadays and banning such websites that promote it is a must for the peace. different areas of potential threat to society are communalism and regionalism, child pornography, Naxalism etc and promotion of them through websites etc is prohibited in the interest of the state and law like Section 69A could be a need for promoting peace, diversity, integrity and holistic development of the country.

Reference:

 http://www.insightsonindia.com/

  https://www.medianama.com/2015/03/223-section-69-it-act-india/

  https://cis-india.org/

^[1] https://indiankanoon.org/doc/10190353/

^[2] http://www.itlaw.in/bareact/it-rules-2009-blocking-of-websites/

^[3] AIR 2015 SC 1523

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In this article, Ashwini Gehlot of Institute of Law, Nirma University Ahmedabad discusses Safe Harbour Regulations (2017) In India.

Background

To control the expanding numbers of transfer pricing audits and prolonged disputes, the CBDT (Central Board of Direct Taxes) published the Safe Harbour Rules (SHRs) in September 2013. But the safe harbour rules didn’t get many responses from the taxpayer because of the high margin and vagueness in the classification of services. And now CBDT has recently issued a notification on 7 June 2017, revising the already established safe harbouring rules in India.

Safe Harbour – The concept

Section 92CB of The Finance (No. 2) Act 2009 defines the term Safe Harbour as “circumstances under which the income-tax authorities shall accept the transfer pricing declared by the assessee.”^[1]

Safe harbours provide for conditions in which a specific category of taxpayers can follow a straightforward arrangement of rules under which transfer prices are mechanical, accepted by the revenue authorities. Safe harbour provisions offer necessary advantages to taxpayers and tax administrators with benefits of administrative simplicity, compliance relief, and certainty.

Benefits for taxpayers and the revenue authorities by the adoption of safe harbour rules, like^[2]

• Advance information or information about the range of profits or prices to meet all the requirements for the safe. This brings certainty in transactions.
• Removal of the likelihood of litigation between the revenue authorities and the taxpayers.
• Self-assessment procedures and Automatic approvals.
• Ease of compliance.
• The decrease in compliance cost harbour.

The above-mentioned advantages enable the taxpayers and its partners for better planning of intra-group transactions.

Alongside the advantages, certain difficulties will be confronted by the taxpayers as well the income tax authorities like^[3]

• Characterising the qualification for safe harbour.
• Computation of operating benefits and its adequacy to Income Tax Authorities.
• Approval process and subjectivity in approvals.
• Administrative implementation of the provisions.

Benefits for taxpayers and the revenue authorities by the adoption of safe harbour rules, like^[4]

The earlier SHRs were applicable from AY(assessment year) 2013-14 till 4 consecutive years following this AY i.e. till 2017-18 and the new SHRs are applicable from AY 2017-18 up to 2 consecutive years i.e 2019-20. And for the AY 2017-18, taxpayer have the choice to choose the rules from old or new rules, whichever is more profitable or beneficial for them.

Key Highlights^[5]

Rationalisation Of Safe Harbour Rates

The safe harbour rates are now decreased for all the contract services, like-

• For IT (Information Technology) and ITeS ( IT-enabled services) previously it was 20-22% and now it is decreased to 17-18%.
• For KPO services (Knowledge Processing Outsourcing) it is brought down from 25% to 18%, 21% and 24% depending on the percentage of employee cost to operating cost.
• For R&D (Research and Development) service provider (for genetic pharmaceutical drugs and IT) is decreased from 29-30% to 24%.

Introduced Upper Turnover Threshold Of Rs. 200 Crore

This is introduced for all types of contract service providers as mentioned above like IT, ITeS and so on. For AY 2017-18 rules, the taxpayer has the discretion to choose between old and new rule. So, now even a taxpayer with pertinent international transaction surpassing Rs. 200 crore can according to old rules, opt for safe harbour.

Safe Harbour Introduced For Receipt Of Low Value Adding Intra-group Services

In the revised rule, the provision of the safe harbour is extended and now Indian entities can receive low value adding intra-group services. And in this matter the SHRs are mostly in line with the guidelines issued by OECD under BEPS (Base Erosion and Profit Shifting) action plan 8-10, in respect of low value adding intra-group services, there are some gaps. To be covered by SHRs, like such services should-

• Not be duplicate service or shareholder services or a part of multinational enterprise (MNE) group.
• Be services which do not have the reliable external comparable services used to determine their ALP (Arm’s Length Price) and should be in the nature of support services.
• Not required to use or create, unique and valuable intangibles.
• Not include the assumption or control or creation of significant risk by/for the service provider.

There is a list of 10 types of services which are excluded from the low value adding intra-group services, like BPO, KPO, IT etc.

The new rules of SHRs have set down the definition of an accountant and also set a requirement for the applicant to get the following aspects certified by the accountant.

• Procedure of cost pooling,
• The reasonableness of allocation keys used for allocation cost and
• Removal of duplicate costs and shareholder costs from cost pool.

Safe Harbour Rate For KPO Service

For the request of the unsteady safe harbour rate for the KPO services, which is dependent on the application of employee cost to operating cost ratio, the employee cost has been defined to add different items of employee benefit and compensation like gratitude, bonus, salary, prerequisite, commission, wages, expenses incurred on the contractual employment of a person who is performing similar skills like that of regular employee, payment received on termination of service, relocation, recruitment and training expenditure etc.

It also included outsourcing expenses, to the level of employee cost, whenever determinable it is set in the total outsourcing expenses and if not determinable then 80% of the total outsourcing expenses are considered as employee cost.

Safe Harbour Rates On Loan Advanced In Foreign Countries

This rate which is given by the revised SHRs is based on the LIBOR (London Inter-Bank Offer Rate) for loans provided to AEs denominated in foreign currency. This new rule has also given the staggered rates depending on the credit rating of the overseas borrower, and such credit rating should be approved by Credit Rating Information Services Of India Limited (CRISIL a global analytical company giving research, risk, policy advisory services and rating)

Definition Of Operating Cost And Operating Revenue

The revised SHRs amended the definition of operating expenses to include-

• Cost related to ESOP (Employee Stock Option Plan) given by associated enterprises (AE)
• Compensation to AE for expenses incurred by the AE on behalf of the taxpayer.
• Amount recovered from the AE which is related to normal operations of the taxpayer.

Safe Harbour Rates^[6]

A brief snapshot of the eligible transactions, circumstances for application of SHR 2017, threshold, and the safe harbor margins is provided below:

^[1] THE FINANCE (No. 2) BILL, 2009, NO. 33-F, Act of Parliament, 2009 (India), 92CB.

^[2] Malpani, M. (2017). An overview of Safe Harbour Rules in Indian Transfer Pricing Regime (April 2014) | Bizsolindia Services Pvt. Ltd.. [online] Bizsolindia.com. Available at: http://bizsolindia.com/an-overview-of-safe-harbour-rules-in-indian-transfer-pricing-regime-april-2014/ [Accessed 12 Jul. 2017].

^[3] Malpani, M. (2017). An overview of Safe Harbour Rules in Indian Transfer Pricing Regime (April 2014) | Bizsolindia Services Pvt. Ltd.. [online] Bizsolindia.com. Available at: http://bizsolindia.com/an-overview-of-safe-harbour-rules-in-indian-transfer-pricing-regime-april-2014/ [Accessed 12 Jul. 2017].

^[4] Anon, (2017). [online] Available at: http://www.in.kpmg.com/taxflashnews/KPMG-Flash-News-CBDT-notifies-revised-Safe-Harbour-Rules-2.pdf [Accessed 12 Jul. 2017].

^[5] ibid.

^[6] Anon, (2017). [online] Available at: http://www.in.kpmg.com/taxflashnews/KPMG-Flash-News-CBDT-notifies-revised-Safe-Harbour-Rules-2.pdf [Accessed 12 Jul. 2017].

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In this article, Ashwini Gehlot of Institute of Law, Nirma University Ahmedabad discusses Liquor laws – Production & distribution, Consumption and Import & Export.

Production And Distribution

• India is one of the greatest producers of liquor around the world and adds to 65% of manufacturing and about 7% of imports into the territory. The exact gauge of unrecorded liquor production is not clearly known.
• It is evaluated that the quantity of liquor manufactured in India in 2006 – 07 may have been roughly 4 million liters. The mass liquor manufactured in India is predominantly from sugarcane molasses. Around 52% of liquor produced in India is for the consumable reason.
• Among the prevalent liquor products, country liquor and Indian-made foreign alcohol represent about 60 to 70% of the aggregate beverage liquor consumed. The conventional home-prepared beverages represent an expansive degree of unrecorded consumption.
• Liquor sale and production and distribution are basically a state subject in India. Because of a few impediments in the current excise policies, a considerable lot of the Indian states produce liquor far in abundance of the stipulated quantity.
• The production, sale, and distribution pursue a complicated duty structure differing from state to state. The tax assessment on imported liquor additionally varies between 100% and 500%.
• The liquor industry contributed an expected 216 billion in the year 2003 – 04 to the State exchequer and constituted about 90% of the State excise obligations. This income era is one of the essential sources of income for the government.
• The consumption level of liquor is not directly connected with the taxation policies because the government only increases the tax to generate more revenue.
• The policies which are promoted till date have been basically with a view to expanding taxes to generate more revenue and not from a public health perspective. Actually, the importance of public’s’ health has been totally ignored while making the policies and programes.

State-wise Alcohol Consumption

State-wise alcohol consumption per capita per week (in ml) as of 2011-12.

A Look At The Different States And Their Liquor Policy, The Amount Of Spirit One Can Stock At Home

Delhi

As per Delhi excise rules, no person can stock more than 18 liters of liquor, wine, cider, alcopop and beer and 9 liters of Indian and foreign alcohol (rum, whiskey, vodka, gin) at home or for parties. Those making a trip from another state to the capital can’t carry more than a liter of any type of alcohol and those coming from abroad can bring just 2 liters of foreign alcohol with them.

Madhya Pradesh

The Madhya Pradesh government’s decision to permit those with a yearly income of over Rs 10 lakh to stock as many as 100 bottles of costly alcohol in their homes, for a yearly fee of Rs 10,000, has turned the focus on a little-known part of drinking laws in the nation.

Punjab

The state enables family units to stock 2 bottles of IMFL (Indian Made Foreign Liquor); 2 bottles of imported alcohol of any size (1 litre or 5 liters); 1 case of beer (650 ml for each bottle); 2 bottles of the nation made alcohol and of brandy. Those hoping to stock more can get an L-50 license (yearly expense of Rs 1,000 and lifetime charge of Rs 10,000).

Assam

Till 1976, alcohol must be purchased in this north-eastern state through a remedy from a registered medical specialist, but the law was revised/amended in 1976. The state now permits its inhabitants 12 IMFL bottles of “reputed” liquor, each of a greatest 750 ml. There are no arrangements for stocking more.

Haryana

It enables people to stock 6 bottles (750 ml each) of country alcohol; 18 bottles (750 ml) of IMFL alcohol, of which 6 bottles can be of Imported Foreign Liquor; 6 bottles (750 ml) of rum; 12 bottles (650 ml) of beer ; 6 bottles (750 ml) of gin/cider/vodka and 12 bottles of wine. For those who are still not content or satisfied, the state permits more private ownership through an L-50 form, that can be purchased for Rs 200 (for a year) and Rs 2,000 (lifetime charge).

Rajasthan

The state permits residents 9 liters of IMFL or 12 bottles of IMFL. There are, also, arrangements for people hoping to hold parties. For residential parties, licenses can be purchased for Rs 2,000 and also be adding some taxes while for business ones, the rate has been set at Rs 10,000 plus taxes.

Goa

The daylight state permits 24 bottles of beer; 12 containers of IMFL alcohol; 6 bottles of rectified spirit and denatured spirit at home; 18 bottles of country alcohol. Goa, however, has strict punishment for violators. According to its excise Act, the punishment which is there are imprisonment (rigorous) which may reach out to 7 years, with or without fine (least punishment not to be less than 6 months).

Himachal Pradesh

48 bottles of beer and 36 of whiskey per individual. For much else, the L-50 permit is appropriate. The hill state also offers some concessions under a special permit called 50-A.

Uttar Pradesh

“The limit is 1.5 liters country-made alcohol, 1.5 liters IMFL and 4 bottles of beer. In the event that anybody is found storing alcohol above this limit, he or she will be liable for lawful action.”

Alcohol Ban On States

Gujarat

Gujarat is proclaimed “dry” by the government. It has a law called Bombay Prohibition (Gujarat Amendment) Bill, 2009 that disallows the sale, production, and consumption of liquor inside the state boundaries.

Bihar

Liquor has been prohibited in Bihar from April 1, 2016. Under Bihar Excise (Amendment) Bill 2016 Section 19(4). All sort of alcohol has been restricted in the state. Sale of a liquor in bars, hotels, clubs and some other place has been unlawful.

Kerala

It was decided in 2014, that state claimed Kerala State Beverages Corporation (Bevco) has 338 shops, and Bevco will close down 10% of them consistently. Consumerfed, which has 46 shops, will likewise be shut. Be that as it may, the sale of liquor will continue to be allowed in 5-star inns, and there were fourteen 5-star inns in the state as of August 2014.Toddy will likewise keep on being legitimately sold, and toddy shops will be allowed to work as before.

Lakshadweep

Lakshadweep totally bans the consumption and sale of liquor. Bombay Prohibition (Gujarat Amendment) Bill, 2009. Consumption is allowed just on the island of Bangaram.

Manipur

A restriction was upheld statewide with impact from 1 April 1991 however in 2002, the government lifted prohibition in the 5 hill district of Manipur.The state Legislative Assembly passed the Manipur Liquor Prohibition (Amendment) Bill, 2002 lifting restriction in the specific regions. And in July 2014, it was expressed in the Manipur state assembly that the state government was taking a gander at the alternative of lifting prohibition in the state.

Nagaland

Nagaland is another north eastern state to a put ban on liquor. The Nagaland Liquor Prohibition Act was instituted in 1989 to put a restriction on the consumption and sale of liquor. Regardless of the prohibition on Zutho and IMFL, a mainstream local drink is to a great extent accessible over the state. Police Authorities know about this illicit sale however they are inactive in making any stride against it.

Liquor Consuming Age In India In Different States

State in which liquor consuming age is 21

1. Chhattisgarh (The Chhattisgarh Excise Act, 1915 Section 23)
2. Arunachal Pradesh (The Arunachal Pradesh Excise Act, 1993 section 42)
3. Andhra Pradesh {The Andhra Pradesh (regulation of Wholesale Trade and Distribution and Retail Trade in Indian Liquor, Foreign Liquor, Wine and Beer) Act, 1993}
4. Assam (Rule 241 and 5.10 of the Assam Excise Rule 1945)
5. Goa (The Goa Excise Duty Act and Rules, 1964 Section 19)
6. Dadra and Nagar Haveli (THE DADRA AND NAGAR HAVELI EXCISE REGULATION, 2012 Section 24)
7. Jammu and Kashmir (Jammu and Kashmir Excise Act, 1958 SECTION- 50 B Jammu and Kashmir Liquor License and Sales Rules, 1984 RULE 11)
8. Daman and Diu (The Goa, Daman and Diu Excise Duty Act & Rules 1964 section 19)
9. Madhya Pradesh (The Madhya Pradesh Excise Act, 1915– SECTION 23)
10. Orissa (THE ODISHA EXCISE ACT, 2005 SECTION 61)
11. Jharkhand (The Bihar & Orissa Excise Act, 1915 Section 54)
12. Tamil Nadu {Tamil Nadu Liquor (License and Permit) Rules, 1981 Section 25 rule XV}
13. Karnataka (Karnataka Excise Department, 1967)
14. Uttrakhand {United Provinces Excise Act, 1910 The Uttaranchal (The Uttar Pradesh Excise Act, 1910) Section 2}
15. Tripura (THE TRIPURA EXCISE ACT, 1987 SECTION 53)
16. Telangana (Andhra Pradesh Excise Act 1968- SECTION 36)
17. West Bengal (Bengal Excise Act 1909 SECTION 51)
18. Uttar Pradesh (United Provinces Excise Act, 1910 Section 2)

States in which liquor consuming age is 18

1. Andaman Nicobar islands (Andaman and Nicobar Islands Excise Regulation, 2012 Section 24 Excise Policy RULE 14)
2. Kerala (Abkary Act, (1 OF 1077) Section- 15A & 15B)
3. Himachal Pradesh (THE HIMACHAL PRADESH LIQUOR LICENSE RULES, 1986 RULE- 16)
4. Pondicherry (The Pondicherry Excise Act, 1970 Section 35)
5. Mizoram {Mizoram Liquor (Prohibition and Control) Bill 2014 Section 58}
6. Sikkim {THE SIKKIM HOME GUARDS BILL, 1992 ( BILL NO. 1 OF 1992 ) SECTION 20}
7. Rajasthan (Rajasthan Excise Act 1950, SECTION 22)

States in which liquor consuming age is 25

1. Chandigarh (Punjab Excise Act, 1915 Section 23)
2. Haryana (Punjab Excise Act,1914– SECTION 29)
3. Delhi (Delhi Excise Act, 2010 Section 23 Delhi Liquor License Rules, 1976)
4. Punjab (Punjab Excise Act,1914– SECTION 29)
5. Meghalaya (EASTERN BENGAL AND ASSAM ACT, 1910)

Dry Days In India

Most Indian states and Union Territories have Dry Days – days when the sale of liquor is restricted. Consumption of liquor out in the public eateries and restaurants is banned while individuals can drink in their homes. Independence Day (August 15), Republic Day (January 26), and Gandhi Jayanti (October 2) are usually observed Dry Days in all over the nation. Aside from these, significant celebration days (festival) of the state are normally Dry Days. Various states likewise observe regular Dry Days, for example, the 1st day of the month and so forth. The days going before or following the state/national election are likewise normally Dry Days.

Liquor License

General Procedure Of Getting A License

Part 1 – Understanding What Type of License You Need

Know your state’s liquor laws.

The main thing to know about is that each state has its own principles and prerequisites with respect to the issuance of alcohol licenses, so you should contact a local authority to get some knowledge about concerning liquor laws and the sale of licenses in your particular state.

• Every state has an Alcoholic Beverage Control (ABC) organization that directs the distribution and sale of alcohol, so you can also contact your local ABC agency for more information.
• A few states have license quotas with respect to the number of places that can sell liquor inside the state, at any given point in time. Towns may likewise have quotas in place. It is critical to know whether there are any accessible licenses for your state and town – if there aren’t, you may experience issues getting a license.

Figure out if you need an on-license or an off-license.

There are two types of alcohol license required by premises that offer liquor.

• You will require an on-license if the alcohol you offer is proposed to be consumed on the premises. Businesses that would require an on-permit are taverns, bars, and restaurants.
• You will require an off-permit if the alcohol you offer is expected to be consumed off the premises. Businesses that would require an off-license are drug stores, alcohol stores, and grocery stores.

Figure out the specific class of license you need.

In a few states, you have to apply for a specific class of license, contingent upon the nature of your business and the assortment of alcohols you expect to offer. Examples of common license classes comprise:

• Tavern license: it might be required in some states by organizations/businesses that serve food, but earn up to half of their overall benefits through the sale of liquor.
• Beer and wine: Some smaller restaurants and bars may only be allowed a license to offer “delicate” (soft) alcohols like wine and beer. This license does not give permission to the owner to sell “hard” alcohols, similar to spirits.
• Restaurant: Restaurant licenses commonly enable any sort of liquor to be sold on the premises. However, the permit may stipulate that exclusive a specific rate of the restaurant’s aggregate income may originate from the sale of liquor. This rate is normally in the region of 40%.

Part 2- Navigating the Application Process

Start as early as possible

 In the event that you anticipate opening a restaurant or bar that serves liquor, it’s essential that you start the way toward acquiring your alcohol permit as ahead of schedule as would be prudent.

Consider the cost.

The cost of getting your alcohol license can shift incredibly. In some cases you will just need to pay a couple of hundred dollars to cover the application fee and taxes.

• Sadly, because of the license quota that exist in numerous towns and cities, you might be required to purchase a license from an restaurant,existing bar or alcohol store. At the point when this happens, the cost of your acquiring your permit could rocket into the a huge number of dollars range.

Write a clear outline of the type of business you will be running.

As mentioned in Part 1 above, there are normally different licenses for various sorts of organizations – for instance, opening a alcohol store will require a different kind of license than running a local bar.

• Subsequently, as a major aspect of your application, you should compose a clear portrayal of the sort of business you will be running. You ought to incorporate information on whether you mean to offer liquor for consumption on the premises and on the rate of your aggregate income you hope to originate from the sale of liquor.
• You ought to incorporate information on what sort of liquor you will be serving or offering. This is vital as a few sorts of liquor require a different license in comparison to others.

Fill in the necessary forms and provide any required documentation.

You can gain the essential forms from your ABC agency or local council and Trade Bureau and The Alcohol and Tobacco. In a few states, you have to submit an application to both the state and your local town or district.

• The application will incorporate insights about your business and your personal background. And other details, for example, your business experience, your age and having a clean personal record may influence the state’s decision to concede you a license.
• You will also need to incorporate various vital documents with your application, which may include: a partnership agreement, a certificate of incorporation, a duplicate of your proposed food menu, company constitution, floor plan of the interior and photographs or drawings of the building’s exterior, a code compliance certificate and a duplicate of the declaration of title for the premises.

Be prepared to defend your proposal.

After you present your application, a notice will be posted in the proposed area of your business, including your name, the sort of permit you are applying for and what selling privileges the proposed permit would entitle you to.

• This notice must be publicly shown for a particular time period (which fluctuates by state). Amid this time, anybody from the local community can approach and challenge your application.
• Contingent upon the state or city laws, you may be required to post an announcement of your alcohol license application in the local newspaper, and in some other places also which are connected with local neighborhood associations, for example, place of worship, schools, and nearby parks.
• In the event that there are no objections to your application, local government will continue with assessing your application as normal. On the off chance that there are complaints, you might be called forward to defend your proposition at an open hearing, before an official decision is made.

Part 3- Maintaining your liquor license

Renew your liquor license yearly.

You should renew your alcohol license on a yearly premise, which will include paying a renewal fee.

• Remember that in case, you remain on favorable terms with your local agency consistently, you might be qualified for a decreased fee.

Be aware that your license can be revoked.

You should have the knowledge of the fact that your license can be revoked in the event that you violate the terms set by your local agency.

• Basic infringement incorporates over serving liquor beverages to patrons, selling alcohol to a minor and enabling a worker to be intoxicated on the premises.

References

• Edayaranmula, J. (2014). Alcohol In India: Production And Distribution. [Blog] IOGT International. Available at: http://iogt.org/blog/2014/03/17/alcohol-in-india-production-and-distribution/ [Accessed 14 Jul. 2017].
• My India. (2015). Alcohol Consumption in India. [online] Available at: http://www.mapsofindia.com/my-india/india/alcohol-consumption-in-india [Accessed 14 Jul. 2017].
• The Indian Express. (2016). In high spirits: India’s drinking laws. [online] Available at: http://indianexpress.com/article/india/india-news-india/in-high-spirits-indias-drinking-laws/ [Accessed 14 Jul. 2017].
• kumar, v. (2012). Party spoiler! Stocking up booze can make you poorer by Rs 1 lakh and even land you in jail. [online] indiatoday. Available at: http://indiatoday.intoday.in/story/party-spolier-delhiites-stocking-up-on-booze-jail-india-today/1/234608.html [Accessed 14 Jul. 2017].
• (2016). 6 States in India where Alcohol is Banned. [online] Available at: https://www.expertily.com/blog/6-states-to-ban-alcohol-India [Accessed 14 Jul. 2017].
• Vohra, B. (2016). ALCOHOL LAWS IN INDIA. [Blog] lawfarm. Available at: https://lawfarm.in/blogs/alcohol-laws-in-india [Accessed 14 Jul. 2017].
• (2017). How to Get a Liquor License. [online] Available at: http://www.wikihow.com/Get-a-Liquor-License [Accessed 14 Jul. 2017].

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In this article, Karan Singh of Jindal Global Law School discusses the punishment for spreading religious hatred on social media.

The Purpose of religion is to control yourself, not to critics others.–  Dalai lama

Introduction

Religious hatred is a violence between different religious groups. Like we have racism which implies hate against someone’s race. Spreading religious hatred is very common these days. It can be through any mean like social media. In India, there have been many instances where religious hatred is turned into religious violence. Violence against Muslims in India or north-eastern is on rising. Social Media is a way to communicate a message to others. But some people make misuse of these social media by showing their hatred to other religion. In a world like this where groups are divided on the basis of religious makes hatred more for others.

In India, there are 9 religions in total. It is a land of different religions which are characterized by various religious practices.^[1]People of India have a strong belief in religion as they believe that these religions add purpose to their lives. Indians are so much connected to religion that they can do anything for their religion. India is the 4th worst country for religious violence. Hurting someone’s religion is a crime in India. The Government of India does understand the sentiments of people of India that is why rules and regulation are setups so that no-one hurts the sentiments of other religion. Punishment is also given for people who spread religious hatred either in public or on social media.

In 1984, Supreme Court decided to forfeit all the copies of book ‘Vishwa Jtibas’. This book contained derogatory references to Prophet Mohammad which outraged the religious feelings of the Muslims. The Supreme Court ordered to forfeit all the copies of the book keeping in mind the interest of the people.

Recently, Supreme Court has warned about the religious sensibility in India. A bench of Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar stated that Insults to religion offered carelessly or without any intention to outrage the religious feelings of that class should not be charged with hurting religious.^[2] The Bench was hearing a case against the cricketer in which he hurled the sentiments of Hindu religion. Dhoni was seen on the cover page of the magazine as Lord Vishnu, holding a shoe in one hand.

Telecom Minister Kapil Sibal said that India does not intend to censor all the online social networks but the rules and regulation should be followed. Since 19 internet social media including Google, Yahoo and Facebook have been targeted in criminal and civil cases lodged in New Delhi Courts. Mostly, the cases are related to religious hatred. However, the court is holding the companies responsible for the derogatory words used by their users on their platforms.

The court has warned all the Social media to have a regular check or otherwise they have to pass an order for banning all such websites.^[3]

Position Of India

On Religious Hostilities, India Ranked Just Slightly Better Than Syria. India ranked fourth in the world in 2015 after Syria, Nigeria and Iraq in social hostilities involving religion. Interference from government and government restrictions on religion in India is high and is increasing every year. Government restrictions on religious practice in India was largely directed towards minorities. ^[4] In India, people tend to follow more religion than any other country. People of India is so connected with religion that sometimes they can insult other religions. Insulting another religion and showing hatred to other religion is very common in India. For that government has to interfere in between. Government has provided punishment so as to stop religious hatred.

A Facebook post can get you arrested

In our Constitution, a right to freedom of speech is given under Article 19(1)(a). It states that every citizen shall have the right to freedom of speech and expression. Protection of certain rights are given to every citizen but it does not mean that you misuse this right to hurt others religion. Article 19(2) defines all the exception when the freedom of speech ad expression won’t work.  Article 19 (1)(a) gives right of freedom of speech and expression subject to ‘reasonable restriction”. Reasonable restrictions can be for preserving public order, decency or morality.

Generally Speaking, article 19 gives right to freedom of speech but you can not speak against anyone religion as this can hurt our religion and can lead to indecency. And the government can make any law so as to preserve public order, decency, and morality.

There have been so many instances where people have shown hatred toward each other’s religion especially on social media like Facebook, Tweeter, etc.

People have landed in jail before of a Facebook post. Recently, Rahat Khan was arrested by UP police for a posting a Facebook post against the new UP CM Adityanath. In March 2015, a class 12th student was arrested for posting objectionable comments on UP minister Azam Khan.

In 2014, a man from Kerala was arrested for posting abusive comments and photos on Facebook about Prime Minister Narender Modi.

In November 2012, two girls were arrested for posting a question on her Facebook page questioning why this city was shut down for Shiv Sena leader Bal Thackeray’s funeral. One of them commented that the shutdown was out of fear, not respect. The second girl was arrested for liking the post.

They were booked under section 295(a) of the IPC for “hurting religious sentiments” and Section 66a of the IT Act.

This raised a question on whether there is a right of freedom of speech or not in India.

Know the Laws related to social media and religion

Section 153A of IPC

Section 153A of IPC states that whoever promotes enmity between different groups of religion and doing acts prejudicial to maintenance of harmony will face punishment. Whoever

1. By words, either spoken or written or by signs or by visible representations or otherwise promotes religion disharmony or feelings of enmity, hatred or ill-will between different religious or
2. Commits any act which is prejudicial to the maintenance of harmony between different religious and which disturbs or is likely to disturb the public tranquillity shall be punished with imprisonment which may extend to three years or with fine or with both.^[5]

Section 295A of IPC

Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

Whoever with deliberate and malicious intention of outraging the religious feelings of any class of citizen of India by words, or by signs or by visible representations insults to attempts to insult the religions or the religious belief of that class shall be punished with imprisonment of either description of a term which may extend to 3 years or with fine or with both.

This provision was introduced in 1927 as to protect the religious feeling which was hurt by a published a book called “Rangila Rasul”. The book contained the marriage and sex life of Prophet Muhammed. There was no provision against the insult of religion, so the publisher was released. But the published was killed later by Ilm-ud-din. The killer was honored and called Shaheed. The Indian Muslim demanded provision against the insult of religious feelings. Hence, section 295A was introduced by the government.^[6]

Also, this provision was declared constitutionally valid in Ramji Lal Modi v State of UP, a five-judge bench of the supreme court upheld its constitutionality under Article 19. That means that now for making it unconstitutional, a seven-judge bench is required. To make it unconstitutional means you should have a strong and compelling reason.

Section 298 of the IPC

Any person uttering words etc with deliberate intent to hurt the religious feelings of any person will be punished under this section. Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places, any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. ^[7]

Section 66A of IT Act

Section 66A of the IT Act states the punishment for sending offensive messages through communication services etc. Any person who sends any information which is offensive or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device. This section is only through communication services like social media. This section provides punishment with imprisonment for a term which may extend to three years and with fine.

But this provision is scrapped by Supreme Court. As this section was unconstitutional. In 2015, Section 66A of IT Act was declared unconstitutional by the Supreme Court. The court struck down Section 66A of the IT Act for being “open ended, undefined, and vague”.^[8]

Conclusion

Hate Speech on Social Media is the easiest way to show hatred toward other’s religion. But punishment that is given under the IPC makes it difficult. Showing hatred toward someone’s religion is not acceptable anywhere in the world. If the someone is following a religion then let we can’t stop them as the Constitution of India allows them to. Hate Speech can lead to many dangerous situations like rioting, war, strikes etc. We should not talk about anyone’s religion on Social Media. Instead SPREAD LOVE, NOT HATRED.

References

^[1] http://www.mapsofindia.com/maps/india/religionsinindia.htm

^[2]http://www.huffingtonpost.in/2017/04/21/stop-misusing-law-against-hurting-religious-sentiments-says-sup_a_22050257/

^[3]http://www.ndtv.com/india-news/no-censorship-for-social-media-but-laws-must-be-followed-sibal-569120

^[4]http://www.huffingtonpost.in/2017/04/13/on-religious-hostilities-india-ranked-just-slightly-better-than_a_22037994/

^[5] Section 153(a) of Indian Penal Code,1860

^[6] Section 295(a) of Indian Penal Code, 1860

^[7] Section 298 of Indian Penal Code, 1860

^[8] Section 66A of Information Technology Act

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In this article. Karan Singh of Jindal Global Law School discusses everything you need to know about Contract of guarantee.

The Indian Contract Act , 1872

Section 126 of Indian Contract Act defines Contract of guarantee. It defines a contract of guarantees a contract to perform the promise or discharge the liability of a third person in case of his default. ^[1]

The person who gives the guarantee is called “surety”. The person of whose default the guarantee is given is called the “Principal debtor”. The person to whom the guarantee is given is called the creditor.

Contract of guarantee can be of two types. It can be oral or written. However, for a contract to form in between the parties there should be meeting of minds that means all three parties should be privy to the contract. Contract of guarantee is a promise to answer for the payment of the debt that the principal debtor takes from the creditor or the performance of some duty. IN case the principal debtor fails who is in the first instance liable to pay or perform. Therefore, the primary liability to pay is of the principal debtor. Whereas, the secondary liability is of the Surety i.e. when the principal debtor fails to pay, the surety comes into role.

Therefore, the contract of guarantee is to indemnify if principal debtor fails to fulfil his promise. In this indemnify is not equal to the contract of indemnify in Section 124 of ICA.

Difference between contract of guarantee and contract of indemnity

• In contract of indemnity parties involved are 2 i.e. indemnifier and indemnity holder whereas in contract of guarantee there are 3 parties involved i.e. principal debtor, surety and creditor. In contract of guarantee there are 3 contracts, first is between principal debtor and creditor, second is between creditor and surety and third one is between surety and principal debtor.

However, there is no need to have three separate agreements between 3 parties. A single agreement can also make them parties to a contract of guarantee.

• The nature of liability in the contract of indemnity is of the indemnifier i.e. The primary liability is of indemnifier. Whereas, the primary liability in a contract of guarantee is of the principal debtor and secondary liability is of surety.

Section 127 of Indian Contract Act

This section basically talks about the consideration in a contract of guarantee. The consideration for the surety’s promise may move from either the creditor or the Principal Debtor. The consideration may benefit the surety but it is not necessary that surety should receive any benefit from the consideration in contract of guarantee. This section speaks of the consideration i.e any benefit that is received by the principal debtor or creditor at the surety’s request.

The word “done” in this section is the past benefit to the principal debtor that can be considered as good consideration.^[2]

Surety’s Liability

Under section 128 of ICA, the liability of surety is co-extensive that of the principal debtor that means the surety is liable to the same extent as the principal debtor. For example if the principal debtor is not liable for debt for some reason, then surety is also not liable for the same.  Also, the principal debtor is discharged from his debt by the creditor for some reason then surety will be discharged too. This section depends on the contract as well. Therefore, the surety’s liability depends on the terms of the contract and is not liable to pay more than the principal debtor has taken.^[3]

Example-  “A guarantees to B the payment of a bill of exchange by C, the acceptor. The bill is dishonoured by C. A is liable, not only for the amount of the bill, but also for any interest and charges which may have become due on it. A guarantees to B the payment of a bill of exchange by C, the acceptor. The bill is dishonoured by C. A is liable, not only for the amount of the bill, but also for any interest and charges which may have become due on it.”

The liability of the surety is joint and connected with the principal debtor. It is the choice of the creditor to recover the amount either from the principal debtor after his default or from surety. He may file a suit against both the principal debtor and the surety or may file a suit against the surety only or the principal debtor only.

In Bank of Bihar v Damodar Prasad^[4] it was held that the creditor do not have exhaust all the remedies against principal debtor before suing the surety. It is the duty of the surety to pay the debt if principal debtor does not pay. The purpose of contract of guarantee is defeated if the creditor is asked to postpone his remedies against the surety. The liability of surety is immediate.

Continuing guarantee

Section 129 of ICA defines continuing guarantee. A guarantee which extends to a series of transactions is called continuing guarantee. It is not confined to a single transaction. In this guarantee, surety is liable to pay the creditor for all the transactions. However, it is very important to find out if the guarantee is a continuing one or not. ^[5]

Difference between continuing guarantee and simple guarantee

• A continuing guarantee can be revoked by the surety any time either by the notice to the creditor or until the surety’s death. Whereas, simple guarantee can not be revoked in any circumstances.
• In continuing guarantee, the transaction can go for long period of time therefore the surety will be held liable for long time as well whereas in simple guarantee the surety liability is over when the debt is paid or the performance is done.

To understand the nature of a guarantee, you must look at :

• The intention of the parties as expressed by the language in the contract.
  • surrounding circumstances to see what was the subject matter which the parties examine.

Example of a continuing guarantee: A in consideration that B will employ C in collecting the rents of B’s zamindari, promises B to be responsible to the amount of Rs 5000 for the due collection and payment by C of those rents. This is a continuing guarantee.

Section 130 of ICA explains the revocation by notice. A continuing guarantee may be revoked anytime by the surety for the future transactions only by notice to the creditor.

The main ingredients in this section is :

• As to future transactions
• Notice to the creditor

Continuing guarantee extends to a series of transactions, surety has a right to withdraw such guarantee. As soon as the surety sends the notice of revocation to the creditor, the surety does not remain liable for any transaction that happens after he has given notice, However, the surety continues to remain liable for any transactions that has already taken place. if the mode of revocation by notice is mentioned in the contract, then notice must be given in that mode only and if no mode is given in the contract then the notice may be given in any form.^[6]

Section 131 of ICA explains the revocation by death of surety.The liability for any transactions that took place prior to the death of the surety will be borne by his heirs. This contract could be implied from the circumstances.^[7]

Discharge of Surety

Section 133 -139 explains all the circumstances in which surety is discharged. All these section can be called the rights of the surety as the surety will not be liable on the guarantee any more.

Contract of guarantee is a contract and can be discharged as a normal contract.

Section 133 of ICA explains discharge of surety by variance.

“Discharge of surety by variance in terms of contract.—Any variance, made without the surety’s consent, in the terms of the contract between the principal 1[debtor] and the creditor, discharges the surety as to transactions subsequent to the variance. —Any variance, made without the surety’s consent, in the terms of the contract between the principal 1[debtor] and the creditor, discharges the surety as to transactions subsequent to the variance.”

This section essentially the outcome of the general rule that is all the parties should be privy to the contract. It stated that when a amendment takes place in the contract without taking surety, the surety is discharged.  Surety cannot be bound to something for which he has not contracted.

For example: A becomes surety to C for B’s conduct as a manager in C’s bank. Afterwards B and C contract without surety’s consent, that B’s salary sell be raised. In this Surety that is A is discharged as A did not know about the contract between B and C.

Exception of this Section:

In this if the alteration is made in the agreement without the surety’s consent that is beneficial to the surety, the surety is not discharged. The alteration should be unsubstantial/immaterial, then surety is not discharged. In Anirudhan v The Thomco’s Bank Ltd it was held that the surety is not discharged as the contract between the principal debtor and creditor is beneficial to the surety.^[8]

Section 134 – Discharge of surety by release of Principal Debtor

In this section states that if the principal debtor is release because of any contract between creditor and principal debtor or by any act or omission of the creditor, then the surety is released. This section is connected with the section 128 of ICA which says that the liability of the surety is co-extensive with that of principal debtor.  The reason for the discharge of surety is with the principal debtor that this release of the principal debtor extinguishes the principal obligation, to begin with.

In this section 2 types of release are mentioned.

1. Express release: This is a situation in where an express contract between the credit and the principal debtor results in discharge/release
2. Implied release: In the section the words “by any act or commission of the creditor, the legal consequence of which is the discharge of the principal debtor” refers to an implied release/discharge.

 The acts or omissions by this section are referred to in section 39, 53, 54, 55, 67 of ICA.

1. Section 39- when a party to a contract has refused to perform or disabled himself from performing his promise.
2. Section 53- when a contract contains reciprocal promises and one party to the contract prevents the other from performing his promise.
3. Section 54- when a contract contain reciprocal promises such that one of them cannot be performed till the other has been performed.
4. Section 55- When a party to a contract promises to do certain things at or before a specific time and fails to do any such thing within that time
5. Section 67- If a promisee neglects to afford the promisor, reasonable facilities for the performance of his promise.^[9]

Section 135– A contract between the creditor and the principal debtor without surety assent to

• to make a composition/compromise with
• promise to give time to
• not to sue the principal debtor
• discharges the surety

“To make composition with”- This essentially mean if the creditor makes any sort of compromise with the principal debtor with respect to the debt them surety will be discharged.

“Promise to give time to”- where the creditor extends time for the payment of debt without the consent of surety, then surety will be discharged.

“Not to sue the principal debtor”- If the creditor agrees with the principal debtor to not to ever sue against him, the surety will be discharged.^[10]

Section 136– Where a contract to give time to the principal debtor is made by the creditor with a third person and not with the principal debtor, then the surety is not discharged.

For example- A agrees with B to supply 500 tons of steel in consideration of Rs 5 Lakhs. C stands surety to A . A agrees with D (B’s father) to extends the delivery date. C is not discharged as D is the third party and not the principal debtor.^[11]

Section 137– Mere Forbearance on the part of the creditor to sue the principal debtor or to enforce any other remedy against him does not discharge the surety.

Mere forbearance means own its own. When creditor does not sue the principal debtor on its own then the surety is not discharged.^[12]

Section 139– In this section consists of the following elements:

• The creditor either does something which is inconsistent with the rights of the surety or omits to do his duty towards the surety
• And because of this the eventual remedy of the surety that he had against the principal debtor is impaired(weakened) , the surety is discharged.

The object of this section is to ensure that no arrangement different from that contained in the surety’s contract is forced upon him. Duty of care is owned by the creditor.^[13]

Section 140– The meaning of this section is that the surety steps into the shoes of the creditor after he has paid the guaranteed debt or performed whatever he was liable for. This right of the surety to step into the shoes of the creditor is known as the surety’s right of subrogation.

Automatic subrogation : Once the surety has paid the guarantee amount to the creditor. The surety is invested with this right automatically without any pre-conditions attached to it.^[14]

Section 141– A surety is entitled to every security which the creditor has against the principal debtor at the time when the suretyship is entered into. Or if the creditor loses or parts with such security the surety is discharged to the extent of the value of the security. This section is applied even when the surety’s consent is not there. The words “if the creditor loses security” refer to deliberate action by the creditor and not a mistaken situation beyond the control of the creditor.

Extent of discharge: if the value of the security is less than the liability undertaken by the surety, then the surety must be held to be discharged to the extend of the value of the security and that he will still be required to discharged the liability which exceeds the value of security. However, if the value of the security given is in far excess of the liability, the surety must be held to be discharged wholly.^[15]

Section 142– Guarantee obtained by misrepresentation. Any guarantee obtained by misrepresentation made by the creditor is invalid.^[16]

Section 143– Any guarantee which the creditor has obtained by means of keeping silence as to a material circumstance is invalid.^[17]

Section 144– Guarantee on contract that creditor shall not act on it until co-surety joins. Where a person gives a guarantee upon a contract that the creditor shall not act upon it until another person has joined in it as co-surety, the guarantee is not valid if that other person does not join.  Where a person gives a guarantee upon a contract that the creditor shall not act upon it until another person has joined in it as co-surety, the guarantee is not valid if that other person does not join.^[18]

Section 145– In every contract of guarantee there is an implied contract of indemnity in between the surety and principal debtor. Principal debtor has to indemnify the surety later with the rightfully sum. The surety can sue the principal debtor for the guarantee amount as soon as his liability becomes absolute. The surety may recover all damages, all costs and all sums in accordance with section 125 of ICA.^[19]

Co-sureties

Section 138– When one co-surety is released does not discharge other co-surety. A release by the creditor of one of them does not discharge the others neither does it free the surety so released from his responsibility to the other sureties.^[20]

Section 146-This section defines co-sureties. Where 2 or more persons are co-sureties for the same debt or duty are liable as between themselves to pay each an equal share of the whole debt or of that part of it which remains unpaid by the principal debtor. contribution of all the co-sureties should be equal, if not mentioned in the contract. It should be according to the contract if the proportion is mentioned in the contract.^[21]

Section 147– Co-sureties are bond in different sums are liable to pay equally as far s the limits of their respective obligations permit. For e.g.. – A, B and C are sureties for D enter into 3 several bonds. A in the penalty of Rs.10,000, B in that of Rs. 20,000 and C in Rs 40,000. D makes a default to the extent of Rs. 40,000. So, the liability of A will be 10,000 , B’s liability will be 15,000 and C’s liability will be 15,000 as well.^[22]

References

^[1] Section 126, The Indian Contract Act

^[2] Section 127, The Indian Contract Act

^[3] Section 128, The Indian Contract Act

^[4] Bank of Bihar v. Damodar Prasad AIR 1969 SC 297

^[5] Section 129, The Indian Contract Act

^[6] Section 130, The Indian Contract Act

^[7] Section 131, The Indian Contract Act

^[8] Section 133, The Indian Contract Act

^[9] Section 134, The Indian Contract Act

^[10] Section 135, The Indian Contract Act

^[11] Section 136, The Indian Contract Act

^[12] Section 137, The Indian Contract Act

^[13] Section 139, The Indian Contract Act

^[14] Section 140, The Indian Contract Act

^[15] Section 141, The Indian Contract Act

^[16] Section 142, The Indian Contract Act

^[17] Section 143, The Indian Contract Act

^[18] Section 144, The Indian Contract Act

^[19] Section 145, The Indian Contract Act

^[20] Section 138, The Indian Contract Act

^[21] Section 146, The Indian Contract Act

^[22] Section 147, The Indian Contract Act

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In this article, Jagriti Bharti of Amity Law School, Lucknow gives an overview of the infamous Nithari case.

Nithari case is one of the most horrifying and gruesome cases of 2006. Nithari is a village situated in Noida (Delhi). This case involved the commission of heinous crimes like sexual abuse, murder, cannibalism and attempted necrophilia. The case grabbed headlines in media due to its brutal and rare nature of crimes. The case came to light after a continued series of disappearances of the children (both boys and girls) and teenagers from the Nithari village in the year 2005 and 2006. Investigation of this case ultimately lead to tracing of the bungalow of Moninder Singh Pandher and this caused the disappearance mystery of the Nithari village to unfold one step after the another.

Background

Year 2003

An abnormally high number of women and children were reported to be missing from Sector 31 of the Nithari village in Noida. The fact of women and children missing from the village predated Surinder Koli’s arrival as a domestic servant of Moninder Singh Pandher who was a businessman and the owner of the bungalow number D-5 located in Sector 31 of the Nithari village. Numerous missing reports were filed to the police by the families of the victim but no action was taken.

February 2005

14 year-old-girl named Rimpa Haldar went missing from 8 February 2005. Her parents made several attempts to register a missing report of her daughter with police but were unsuccessful.

March 2005

Some boys playing cricket found a hand in the plastic bag in the drain located behind D-5. The matter was informed to the police who declaring the hand as an animal carcass, asked the villagers to forget about the incident as nothing was wrong. This can be confirmed by the statements of prosecution witness 23^[1] and 24^[2] which are available as evidence in the court records.

Facts of the case

• On 7 May 2006, a girl named Payal informed her father Nand Lal about her going to Moninder Singh Pandher bungalow but after that, she went missing. Her father went to search her in D-5 where Pandher lived with his servant Koli. Pandher was not in Noida that day and Koli denied knowing anything about Payal.
• Nand Lal went to the police to register a complaint of his missing daughter but police refused to register his complaint. Tired of visiting police and Pandher for one month, he approached the then Noida SSP on June 2006 for help.
• On the order of the SSP, police registered Nand Lal’s complaint of his missing daughter and started their investigation. Police were able to find the fact that Payal’s mobile phone was still in use and traced its location. Checking the call details of the Payal’s number lead them to Koli who called her a day before she went missing.
• Police arrested Koli for further investigation but Pandher got him released soon. Police was not able to find out anything remarkable which could guide them to the whereabouts of Payal but the involvement of Koli in the case was evident.
• Upset with the police’s investigation on the case, Nand Lal approached the court on 7 October 2006. The court ordered the police to investigate the case. On investigation, police discovered lots of plastic bags filled with human skeletons from the drain located behind the bungalow.
• Bungalow owner Pandher and his servant Koli got arrested on 29 December 2006. More skeletons were excavated from the drain on 30 December 2006. Not much evidence was found against both the suspects.
• Mere discovery of skeletons was not sufficient to prove them murders. But the discovery created a sensation in the whole country and people started demanding justice.
• Investigation of the Payal’s case open up the facts of disappeared children and teenager of Nithari. Pressurised with the public rage, Uttar Pradesh government handed over the case to the CBI on 11 January 2007.

Koli’s Confession

CBI was unable to find any evidence against Koli even after 60 days of police custody. They applied to the Magistrate to have Koli’s confession recorded on 27 February 2007 stating that he was willing to confess. Koli’s confession was recorded by the magistrate. In his confession, Koli gave a detailed account of how he lured the victims (9 female children, 2 male children and 5 adult women) into the house, murdered them and attempted to have sex with inert bodies, chopped the dead bodies, eat their body parts and threw the remains in the drain at the back of the bungalow.

According to his confession, Koli was a servant at Pandher’s house. Pandher used to live alone in the bungalow and his family resided at Chandigarh. Apart from them, there was another domestic servant named Maya Sarkar, a gardener and two drivers employed by Pandher in his house. All the murders were done by Koli in the drawing room between 9 am to 4 pm. After each killing, he would carry the body upstairs to a bathroom and chop it into small parts. He would leave the bathroom in that condition and only after cooking some of the body parts and eating them, he would clean up the bathroom and drawing room.  It is very hard to believe that not once in any of the murder, neither Pandher nor any other person employed by him noticed all these things. None was tried as a witness at trial.

THE MINISTRY OF WOMEN AND CHILD DEVELOPMENT REPORT

In 2007, the WCD set up an expert committee to investigate the Nithari case. Their report is an indictment of Noida police and CBI’s investigation. Dr Vinod Kumar (the Chief Medical Superintendent, Noida) informed the committee that the surgical precision with which the bodies were cut create suspicion of organ trade. The WCD report casts doubt that organ trade can be the motive of the offence.

Observation of the Expert Committee

After going through the investigation report provided by the district authorities, the expert committee observed that the modus operandi and motive of the murder were not clear. Following are the observations made by the committee in the case:

• No type and pattern of choice in the selection of the victim which is the hallmark of a serial killer.
• Drain behind and at front of the house is not too deep and has stagnant water. Disposed bodies would have remained there. It’s strange that there was no complaint of foul smell due to decomposition.
• Accused himself confessed that the murder was committed during the daytime. It’s strange that no one witnessed the disposal of the bodies.
• To a body to get decomposed, it normally takes 3 years. Deaths were as recent as 2006 yet only bones and skull was found.
• Torsos were disposed of separately by the accused which was discovered only after search carried out under the supervision of the CBI.

Suggestions of the committee

• CBI should look into angles into organ trade, sexual exploitation, and forms of crimes against women and children.
• Need to study records of organ transplant of all the hospitals of Noida to trace the donor and the recipient.
• The discovery of more and more bodies creates a suspicion of involvement of some other person in the case. To know the motive and modus operandi of the case, the involvement of other persons needs to be investigated.

Judgment

The timeline of the Nithari case will give a better insight into the proceedings and judgement of the case till now-

Year 2006

December 29: Nithari case came into light with the discovery of skeletons from the drain located behind the bungalow number D-5 of Sector 31 in Nithari village of Noida. The owner of the house Moninder Singh Pandher and his servant Surinder Koli were arrested as the prime suspect.

December 30: More skeletons were discovered from the drain.

December 31: Two police constables were suspended for negligence in their duty.

Year 2007

January 3: Uttar Pradesh government suspended^[3] –

• The then SSP ‘Piyush Mordia’ (Gautam Buddh Nagar district)
• The then additional SP of Noida ‘Saumitra Yadav’.
• Former circle officer ‘Sewak Ram Yadav’.
• 6 suspended sub inspectors were dismissed.

January 5: Pandher and Koli were taken to Gandhinagar for extensive narco analysis test by U.P. police.

January 10: CBI took over the case for investigation.

January 11: First CBI team visits Nithari for investigation. 30 more bones found near Pandher’s bungalow.

January 12: Pandher and Koli interrogated by the CBI.

January 20: UP government filed a report to NHRC.

February 8: Pandher and Koli sent to 14 days of CBI custody by Special CBI court.

Year 2009

February 13: Koli was awarded death sentence by the Special CBI court for rape and murder of Rimpa Haldar, one of the several victims.

September 10: Pandher and Koli were awarded death sentence by the trial court. The Allahabad High Court acquitted Pandher but confirmed Koli’s death sentence.

Year 2010

January 7: Supreme Court stayed the death sentence of Koli.

Year 2014

July 20: Mercy petition of Koli was rejected by the former President Pranab Mukherjee.

September 8: Court stayed Koli’s execution at 01 am at night. He was to be hanged on September 12 in Meerut jail.

September 12: The Supreme court extended the interim stay on execution of Koli till October 29.

October 28: The Supreme court bench headed by the CJI, H.L. Dattu rejected the review petition stating that the court did not commit any error in its judgement.

Year 2015

January 29: A division bench comprising CJ Chandrachud and Justice Baghel held execution of Koli’s death sentence. The reason stated by them was, “it would be unconstitutional in view of the inordinate delay in deciding mercy petition.”

The order came after a PIL filed by an NGO named ‘People’s Union for Democratic Rights whose contention was that the period elapsed in the disposal of Koli’s mercy petition was three years and three months and execution of death sentence would be in violation of Article 21 of the Constitution.

Year 2017

July 22: CBI convicted Pandher and Koli and said that the sentence will be pronounced on July 24.

July 24: Pandher and Koli awarded death sentence by CBI rape and murder in Pinky Sarkar case.

This is the eighth of the 16 murder cases in which the judgement has been delivered in Nithari case. Judgments on other eight cases are yet to be delivered. It has been almost eleven years since the case first came into light and families are still waiting for the justice…

 References

^[1] http://www.indiaresists.com/wp-content/uploads/2014/11/Annexure-I-Evidence-of-PW-23.zip

^[2]http://www.indiaresists.com/wp-content/uploads/2014/11/Annexure-II-Evidence-of-PW24.zip

^[3]http://www.hindustantimes.com/india/timeline-nithari/story-CghmTmuSCYbSI2SJgNSNJN.html

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In this article, Himanshi Srivastava of Amity Law School, Lucknow discusses the laws against discrimination of Leprosy.

What is Leprosy (Hansen’s Disease)?

It is a severe chronic disease of skin and nerve damage of ears, arms and legs of the body. The disease is caused by bacillus (rod-shaped) bacteria called mycobacterium leprae.

In this disease people may experience:

• Pain areas: the eyes or foot;
• Skin: Loss of colour, lumps, small lumps, ulcers and redness;
• Sensory: Reduction of sensation of touch, reduced temperature sensation;
• Additional problem: Nerve injury, physical deformity, raising foot problem.

Leprosy is a disease which is spread since ancient times. It is one of the recorded oldest disease in history. According to WHO, the first ever known reference of leprosy is from 600 B.C.  It is common in countries like U.S.A, South California, Africa and other territories of U.S.

TYPES OF LEPROSY

According to Ridley-Jopling System. It has six- classification based on severity of symptoms:

1. Intermediate Leprosy: A few flat wounds that sometimes can be heal by themselves and can appear to be more severe type.
2. Tuberculoid Leprosy: A few flat wounds that can be big and numb, that can involve nerves, can heal on its own and is persistent.
3. Borderline Tuberculoid Leprosy: Wounds similar to tuberculoid but smaller and more numerous, less nerve enlargement, revert to tuberculoid, or any advance form.
4. Mid-borderline Leprosy: Reddish Plaques, moderate numbness, swollen lymph glands, may regress, and is persistent.
5. Borderline Lepromatous Leprosy: Many wounds including flat wounds, raised wounds, raised bumps, plaques, and may persist,
6. Lepromatous Leprosy: Many wounds with bacteria, hair loss, nerve involvement, limb weakness, doesn’t regress.

HOW DOES LEPROSY SPREAD?

It spreads through the contact with the mucus of an infected person. This usually occurs when the infected person sneezes or coughs. The disease isn’t highly contagious. But the constant contact with the untreated person can lead to contracting leprosy.

The bacterium responsible for leprosy multiplies very slowly. The disease has a time period (the time between infection and therefore the look of the primary symptoms) of up to 5 years. Symptoms might not appear for as long as twenty years.

Despite initial discovering mycobacterium leprae (the microorganism that causes leprosy) in 1873, leprosy analysis scientists still don’t completely perceive how leprosy is unfolded.

Most scientists believe that leprosy is spread from person to person in infected metabolism droplets.Whereas this might be a technique during which leprosy is spread, more than fifty percent of the those that develop leprosy have not confirmed contact with an infected person. Factors that will influence how leprosy is spread include:

• Environmental conditions
• The degree of susceptibility of the person
• The extent of exposure.

How Is leprosy spread to household Contacts?

People who live within constant family as an individual with untreated leprosy|infectious disease have an eight-fold enhanced risk of developing the disease. this can be because of genetic factors concerning condition and/or prolonged intimate contact. It’s necessary to note that the partner is the least-at risk family member. The those who are at the best risk of leprosy transmission are:

• Parents of someone with infectious disease
• Children of someone with infectious disease
• Brothers or sisters of someone with infectious disease.

Other attainable Modes of how leprosy is spread:

Leprosy can’t be spread from a mother to her unborn baby, and other people cannot get leprosy through sexual contact.

Why there should be the laws in our Country for Elimination of Discrimination against Leprosy?

In 2014, India had the largest number of latest leprosy cases globally (58%). From 2005 till 2014, the National leprosy Eradication Programme (NLEP) recorded a rate of 1.25 to 1.35 lakh new cases each year. A majority of those are youngsters, who are vulnerable with isolation and discrimination at a young age.

Although leprosy could cause irreversible disabilities, with medical advances, it’s currently a very curable disease. However, a serious obstacle is that the social stigma related to leprosy, and lots of persons affected by leprosy still be outcast from society. Another downside is that of Indian laws, which still directly and indirectly discriminate against persons tormented by leprosy.

In 2010, the United Nations General Assembly unanimously adopted a Resolution on the Elimination of Discrimination against persons tormented by leprosy, accompanied by Principles and tips listing out measures to boost the living conditions of such persons. In addition, the United Nations Convention on the Rights of Persons with Disabilities, 2007 (“UNCRPD”) promotes, protects and ensures the total and equal enjoyment of all human rights and basic freedoms by all persons with disabilities.

India has signed and sanctioned the UNCRPD, and is additionally a member of the United Nations General Assembly that unanimously passed the Resolution on the Elimination of leprosy. However, the Indian government has taken no action to modify or repeal any leprosy laws, or to eliminate discrimination against persons tormented by leprosy. this can be currently an urgent need, and is the focus of this report of the Law Commission.

Accordingly, along with its report and proposals on the issue, the Law Commission has prepared a model draft legislation, titled “Eliminating Discrimination Against Persons affected by leprosy (EDPAL) Bill, 2015”. This draft law contains principles of equity and equal protection before law that must be guaranteed to all persons affected by leprosy or members of their family. It also seeks to promote the social inclusion of persons affected by leprosy and their family members through affirmative action.

Background of the Bill of 2015

There are several laws that are still in India that discriminate against people affected by leprosy. These laws allow leprosy as a ground for divorce, discriminate against people affected by leprosy who resort to begging for support, bar them from contesting elections, provide for charging higher life insurance premium from them, stop them from travelling in trains, getting driving licences, etc. For an extended time, people and organisations operating within the field of leprosy were vocal about the requirement for repealing these discriminatory laws to finish the legal discrimination being faced by people affected by leprosy.

But it was The leprosy Mission Trust India (TLMTI) who struck while the iron was still red-hot! TLMTI has already identified 14 laws that discriminate against people affected by leprosy. In september 2014, the Modi government decided to repeal obsolete laws within the country. Seizing this chance, TLMTI took the issue of repealing discriminatory laws with the Law Minister of India, and had a series of conferences with the Law Commission of India. With TLMTI’s persistent awareness raising initiatives and lobbying, the Law Commission submitted its report for ‘Eliminating Discrimination against Persons affected by Leprosy’ (Report No. 256 dated april 7, 2015) to Mr D.V. Sadananda Gowda, Hon’ble Minister for Law and Justice, Government of India.

Justice A.P. Shah, Chairman of the Law Commission of India in his above-mentioned report, under para 1.8 states, “The 20th Law Commission took note of the commendable efforts of TLMTI in addressing the considerations of Persons affected by leprosy through its awareness and support initiatives”. TLMTI succeeded in creating the law makers of this country stay awake and notice of the injustice dispensed to people affected by leprosy.

LAWS FOR ELIMINATION OF DISCRIMINATION AGAINST LEPROSY

The Law Commission of India has submitted its Report No. 256 on “Eliminating Discrimination Against Persons affected by Leprosy” to the Union Minister of Law and Justice on 07.04.2015. The report additionally provides a model draft law to eliminate discrimination faced by Persons affected by leprosy.

The key aspects of the draft law are as follows:

1. Repeal and amendment of certain laws: Besides the repeal of the Lepers Act, 1898, the Law Commission recommends the repeal of discriminatory provisions in various personal laws. It also recommends including persons affected by Leprosy among the list of persons eligible for legal aid under the Legal Services Act, 1987.
2. Measures against discrimination: The Law Commission recommends that persons affected by leprosy and their family members must not be discriminated against in any institution. It also guarantees to such persons the right to access healthcare, adequate housing, education, employment and other such basic amenities.
3. Land Rights: Persons affected by leprosy are usually made to relocate to “Leprosy Colonies” in India, but they do not have land rights, and are constantly under fear of eviction. The Law Commission recommends that title and ownership of property in Leprosy Colonies should be legalised, and if land rights cannot be given, alternative settlement options must be explored.
4. Right to Employment: Many employers misuse existing employment laws to terminate services of persons who are diagnosed with Leprosy. The draft law prohibits the termination of employment of such persons solely due to their association with Leprosy.
5. Educational and training opportunities: The Law Commission recommends that the draft law should ensure the admission of Persons affected by Leprosy and their family members in schools, colleges and other institutes, as educational qualifications are necessary to allow them access to employment opportunities.
6. Appropriate use of Language: The use of the term ‘leper’ and similar terms carries negative connotation, hampers efforts for the inclusion of Persons affected by Leprosy into society, and affects their sense of dignity as human beings. The Law Commission recommends that the term ‘leper’ and other such terms in all government and private documents should be replaced with ‘persons affected by Leprosy’ or a similar term.
7. Right to Freedom of Movement: The draft law ensures that persons affected by Leprosy are guaranteed the right of travel in public transport and the right to obtain a driving license.
8. Concessions during treatment: The draft law seeks to provide relevant concessions and monetary benefits to persons affected by Leprosy who are undergoing treatment, for their travel, lodging during treatment and medicines.
9. Social Awareness: Creating awareness regarding the cure and transmission of Leprosy is the best way to address the discrimination and stigma against persons affected by Leprosy and their family. The Law Commission recommends that awareness about the disease, its treatment and curability should be conducted through campaigns and programmes in schools, hospitals, government institutions and private establishments.
10. Welfare Measures: The draft law imposes specific duties upon establishments to execute certain welfare measures to foster an environment for financial and social growth of persons affected by Leprosy and their families. It also creates Central and State Commissions to strictly enforce such measures, and provides for accountability measures in case of non-enforcement.

EDPAL Bill to EDPAL Act – The long journey

A Bill will become an Act only it’s passed by both the houses of the Parliament. No political party can oppose passing of EDPAL Bill. but during this age of vote-bank politics, which political party will show interest in an insignificant body, like people affected by leprosy, who cannot influence election results?
Even when EDPAL Bill is passed, its implementation is an uphill task. The responsibility to implement varied recommendations lies with different ministries and departments of the government, like Law and Justice, Health and Family Welfare, Social Justice and empowerment, Housing and urban poverty Alleviation, Labour and Employment, Panchayati rule, Railways, Rural Development and a number of different ministries and departments. Who will take the lead in lobbying for getting EDPAL Bill passed and implemented for the good thing about people affected by leprosy?

It is not as easy as we predict. As an example, Rajya Sabha Committee on Petitions had submitted its report (Hundred and thirty-eighth report) on action taken by government on observations/recommendations on a petition signed by Shri Ram Naik, former Union Minister of fossil oil and natural gas and 5 others, praying for integration and management of leprosy affected persons on 22nd November, 2010. There is specific time frame for each and every ministry/department to require action on each issue mentioned in the petition. Over four years later, we discover that no progress has been made.

Conclusion

Leprosy is one of the foremost misunderstood diseases of the world, it poses some distinctive challenges in its management and elimination. A careful examination of the theoretical and sensible approaches of the past will give important insights for the future. to reduce the burden, it’s important to develop a holistic and multi-pronged approach that has key policy changes, a public education campaign, sustainable livelihood programs, skill coaching workshops and bringing in alternative medical stakeholders to generate employment, determine interventions to dispel stigma and mainstream the affected people. Policymakers, health professionals, civil society and public health activists, every one of them has to act as a change agent through their mimetic, legislative and activists roles to win the war against leprosy.

Reference

• http://tlmindia.org/first-step-of-a-thousand-mile-journey-2/
• http://pib.nic.in/newsite/PrintRelease.aspx?relid=118021
• http://www.thehindubusinessline.com/opinion/the-fight-against-leprosy-in-india/article8175600.ece
• http://diseases.emedtv.com/leprosy/how-is-leprosy-spread.html
• http://www.healthline.com/health/leprosy#symptoms 4

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In this article, Jagriti Bharti of Amity Law School, Lucknow discusses the ways in which India can benefit by making a legislation on asteroid mining. 

Human population has exploded from 1.5 billion to more than seven billion over the last hundred years. The increase in the human population of the earth has also increased the consumption of the resources present on the earth by them with a drive of an ever increasing demand for resources in the future. To satisfy the ever increasing demand for resources, efforts like the recycling of the resources has been taken up by the communities. In a bid to fulfil the growing needs of resources underground minings or mining even at the bottom of the ocean has been tried till now. But the reserve of resources present of the earth is very limited and it may end up near in future leaving future generation washed out of the resources. Therefore, a new option for collecting resources has been found out i.e. mining resources from the ‘space’. The resources can be mined from the “Asteroids” present in the space.

DEFINITION OF AN ASTEROID

Asteroids are lumps of metals, rock and dust, sometimes laced with ice and tar, which are the cosmic leftovers from the solar system formation about 4.5 billion years ago.^[1] In other words, asteroids are the minor planets which can neither be classified as a planet or as a comet. These are generally found in the direct orbit around the Sun which is also known as the inner solar system. There are hundreds to thousands of them present in the solar system ranging in size from few yards to hundred of miles. Small asteroids are more in number than the large ones but even a little house sized asteroids could contain metals (like iron, nickel, copper and most valuable of all water) possibly worth million of dollars. The mainly known asteroids are present in the Jupiter Trojans or in the asteroid belt formed between the orbit of Mars and Jupiter. All the asteroids are visible from binoculars except “Four Vesta” which can be seen with bare eyes.

Asteroids can be divided into three different classes based on their spectral type – a classification based on the analysis of the light reflected off of their surfaces. They are:

• C type: These are most common types of the asteroids consisting of the 75% of known asteroid population. All carbonaceous asteroids fall under the C type category. They have high abundances of water bound up as hydrated clay minerals. These kinds of asteroids are extremely dark in nature with their reflection coefficient ranging from 0.03 to 0.10. Although, C type asteroids are of very less economic value since water is abundant on the Earth but it will be extremely helpful in expanding the human presence in the solar system.
• S type: Mainly found in the inner asteroid belt, these kinds of asteroids contain iron and magnesium silicates. They are moderately bright asteroids having reflection coefficient ranging from 0.10 to 0.22. They have very little water but is more economical because of the elements present in them.
• M type: M type asteroids contains nickel and iron in its purest form. Sometimes, stones are also found in these asteroids. The reflection coefficient of these asteroids ranges from 0.1 to 0.2.

Common types of asteroid by their composition

Credit: https://www.spacelawresource.com/single-post/2017/03/03/The-Legality-and-Ethics-of-Mining-an-Asteroid

CONCEPT OF ASTEROID MINING

Asteroid mining may sound like a concept ripped from the Science fiction but various scientists and different space companies are trying to turn it into a reality. It is a process which involves extraction of various useful minerals from asteroids present in the space. Due to the accessibility of the asteroids in the space, Near Earth Asteroids (NEA’s – those asteroids that pass near the Earth) are particularly accessible subsets of the asteroids that provide potentially attractive targets for the resources to support space industrialisation. Materials extracted and processed from the NEA’s can be useful in various fields like agriculture, life support, precious metals etc.

“There are resources that support operation and human activity in space, there are resources that support manufacturing in space and then maybe there are resources that are important enough and valuable enough to bring those resources back to Earth,” says Chris Lewicki, president and chief engineer of Planetary Resources, a private space company focused on asteroid mining.^[2]

The resources extracted from asteroid mining will not only appeal commercial outfits but also NASA as well by enabling a more affordable and more expansive human presence in space. But mining of asteroids is not an economically viable option as it seems to be because of the following reasons:

• Expensive space travel
• Expensive transportation of materials to space
• Bringing resources back to earth is also very expensive

LEGALITY OF ASTEROID MINING

Till now going through the meaning of the asteroid and concept of asteroid mining we understood that it is a process of extraction mines from the asteroid present in the outer space. Now, the question arises – Is asteroid mining legal? The answer is ‘yes.’ Every country has laws its own laws of using their land and water present of the earth but all these laws are generally based on some or other kinds of treaties which support that law. These laws define the extent of the territory of land and water on which a country has its authority to use them their own way. The concept of asteroid mining is relatively new in the outer space. Not many countries have their laws regarding this newly evolved concept but its legality can be traced back from the Outer Space Treaty of 1967.

The Outer Space Treaty (1967)

The Outer Space Treaty is originally known as The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. It is considered as the “Magna Carta” of the International Space law. It was one of the most significant law-making treaties concluded in the second half of the 20^th century. It was adopted by the UN General Assembly on December 19, 1966, and came into force on October 10, 1967.^[3] This treaty was initially signed by the United States of America, United Kingdom and the Soviet Union. This treaty has received 99 ratifications and 25 signatures till 2008. India signed the Outer Space treaty on March 3, 1967, which got deposited on January 18, 1982.

According to the Outer Space Treaty, no country is allowed to place the weapons of mass destruction in the orbit of the Earth, Moon and any celestial body and also neither is subjected to weapon testing or military maneuvering on either of them. The treaty further suggests that no nation is subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means in the Outer Space including Moon and other celestial bodies.^[4]

The Commercial Space Launch Competitiveness Act

The Commercial Space Launch Competitiveness Act is a bill signed by President Barack Obama of November 25, 2015, in order to encourage private space exploration by limiting governmental regulations till September 2023. It was a historic step taken by the President toward opening up the reaches of the solar system. Title IV of the Act allows citizens U.S. (including commercial entities) the explicit rights to own resources extracted from the space such as minerals from asteroids.

This created a misunderstanding in the international community regarding the legality of the title IV of the Commercial Space Launch Competitiveness Act. Article II of the Outer Space Treaty of 1967 states that no nation is allowed to claim ownership of any celestial body be it the moon, asteroid or any planet. Here, it can be clearly seen that “nations” are not allowed to own the celestial bodies. Title IV of the Act doesn’t contest that rule but rather classified that private companies can claim ownership over the resources they obtain from mining asteroids and other celestial bodies and therefore nullifying all the questions of the legality of the Commercial Space Launch Competitiveness Act.

As per the Outer Space Treaty (1967) and the Commercial Launch Competitiveness Act it is clear that asteroid mining is legal if done without disturbing other nations.

NEED OF NATIONAL SPACE LAW IN INDIA

The need of space laws in India can be understood from following points:

• Reducing the load of government entities: India has a hold over the space sector only through government entities i.e. the Indian Space Research Organisation (ISRO). There is nil or very least outsourcing by the ISRO. If its starts distributing some of its work to private companies it can save its time and make its work cost effective. Outsourcing by ISRO will help in the creation of a private space industry ecosystem that will lead to greater bilateral, multilateral and transnational activity.
• Deciding the quantum of damage owed: There is no Indian space law which can determine the quantum of damages which needs to be paid by India in case India has harmed another country with its ‘space debris’. This case arose when an international dispute introduced between India and Japan over the fall of space debris on one of the villages in Japan by an Indian satellite which was retracing back to the Earth. India is liable to pay for the damages caused by it because it is a signatory to the Convention on International Liability for Damage Caused by Space Objects, 1972. In the absence of any law, India is unable to decide the quantum of the damage created by it.
• Exploring its dimension in space: India has its laws of land, air and water and in order to increase its space dimension it needs to have its own space laws apart from space research and development programmes.

BENEFIT TO INDIA FROM MAKING A LAW ON ASTEROID MINING

Mining of the asteroids is of great economica value because of the abundance of minerals present in it. But according to “Magna Carta” of the international space law i.e. the Outer Space Treaty, no nation is allowed to claim ownership of any celestial bodies but they can mine them and keep the mined resources with them. No country has made any law on asteroid mining till now except the US which has passed a bill in this regard. India is still far behind from others in making space law so, one can imagine how much time will it take to make laws on asteroid mining. But if India wants to use the resources extracted from the asteroid, it has to make laws regarding this to be on safer side. Given below are certain benefits which India will have if it makes laws of asteroid mining:

• Responsibility of space debris

Mining leads to two things – minerals and debris. If mining is to be done of the asteroids it will certainly give useful resources as well as certain amount of space debris which needs to be cleaned by the country mining the asteroid. So, in future, in India mines the asteroid, the law on asteroid mining will help it determine the liability it has towards the space debris and the pollution created by it if any.

• Extent of mining

We all must have heard about United Nations Convention on the Law of the Sea III (UNCLOS III) which is the base of the sea law in various countries. This convention defines the extent of the sea to which a country has an authority to use it for its own purpose. Similarly, asteroid law made by India may help other countries decide the extent to which India has the authority to mine a particular asteroid.

• Resolving dispute

Disputes are inevitable and if profit is involved in any matter it becomes more happening. Asteroids are abundant in resources but are limited in number and in that only NEA can be mined to reduce the cost of mining. The demand is more and the reserve is less. In this case, every country will try to mine more and more which results in depletion of resources for others. This can sufficient cause for dispute between two countries. To resolve these kinds of dispute in future, India needs a law of asteroid mining.

• Engaging private space industry

In India, ISRO is the only government organisation which has responsibility and authority of regulating space researches and launching missiles. If any law is made on the asteroid mining in India then it can outsource its work to private space companies regarding the establishment of mining stations in space which will help it remain in conformity with the articles of the Outer Space Treaty which states that no nation can own any celestial body.

References

^[1] https://www.nasa.gov/content/goddard/new-nasa-mission-to-help-us-learn-how-to-mine-asteroids [July 24, 12:32 PM]

^[2] https://www.scientificamerican.com/article/new-law-paves-the-way-for-asteroid-mining-but-will-it-work/ [July, 24, 02:16 PM]

^[3] http://legal.un.org/avl/ha/tos/tos.html [July 24, 04:43 PM]

^[4] Article II of the The Outer Space Treaty, 1967

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In this article, Karan Singh of JGLS discusses How to help child beggars in India.

“A BEGGAR’S DREAM, A HELPING HAND”- BRADLEY B. DALINA

Introduction

Do you know about 3,00,000 children are forced to beg by cartels? They are been drugged, beaten and forced to beg everyday.^[1] This cartel is controlled by human trafficking cartels. And yes human trafficking cartel is a multi-million rupee industry. The money you give to the child beggars goes to these cartels and mafias. Every year 100s of children are brought from Bihar and Rajasthan and forced to beg on streets and in Indian railway.

Recently, the state government of Odisha has directed the Women and Child Welfare Department to rescue and rehabilitate the child beggars. The Odisha childline rescued 12 child beggars from different parts of the cities. 18 minors were also rescued from railway station, bus stand etc.^[2]

We read so many news headlines where it is proved that behind all the child beggars it is either mafia or a racket is going on. But how to stop this thing from happening? A single person can’t stop this but if the government wants they can change this and children can have a further that they want.

In Andhra Pradesh, one person has taken these child beggars and provided these kids with everything. His name is J Rama Chandra Sarath Babu aka Sarath Babu former clerk in Indian Railways. He is the father of 120 children. Sarath Babu is running an ashram in Nellore district for the children who beg and steal on railway platforms since 1994. He not only educate them but also makes their lives better by providing food, shelter and basic necessities. How did he start all this? When he was employed in the Indian Railway, he could see children begging, stealing getting beaten by cops. He always wanted to do something for them but he could because he didn’t have that much money.

He got support from villagers and decided to give 4.5 acres of land to build this ashram. Today, child ashram is one of the good school in Nellore. Sarath is managing this ashram for the last 22 years with the help of donation. ^[3]

If you help others then others will help you. You should not avoid situations where a child begs in front of you. We all have seen a woman and a child. A woman with a child is a major draw and the chances of the people giving out money are more likely. But no-one knows the truth behind that sleeping child. Children are given a glass of milk in the morning because of which the child sleeps all day. This is not because of the milk, it is because of the drug that is mixed with the milk. Yes, a drug is mixed with the milk so that child sleep all day and woman can beg in peace. Crying baby for these persons is a nuisance.^[4]

Causes of children crisis in India: One of the most famous NGO in Jaipur i-India explains the causes of this crisis. The following are the causes of child crisis:

Abuse: Many children run away from their house because of the abuse they experience. some children are beaten and sexually abused. Their homeless children can get further abused through exploitative child labour and prostitution. As per i-India, many of the abused children they encounter are traumatized and do not speak for months. They even take years to recover in the NGO whereas it may never heal on the streets.

Child Labour: In India, children work to earn money so that they can support their family. As young as 6 years old works on the streets or on the railway platforms. Even on railways children work on the platform. The Child Labour (Prohibition and Regulation) Amendment Act, 2016 states employing children (below 14 years) has been prohibited in all occupations and processes, with certain limited exceptions.

Gender Discrimination: In Indian Society, females are often get discriminated because of the liability of dowry. Parents often want a male child. Many girl children are aborted, abandoned or neglected by their parents which lead them on streets.  The literacy rate in India for the woman is only 38% because people in India think that girls place is at home and should not work.India is the most unequal for men and women.Because of gender discrimination, the girl child is forced to go into prostitution, or are forced to beg.

Homelessness: In India, children are homeless because of many reasons like poverty, or because many families in India are homeless. A Homeless child is a continuous threat of many risks. A single child is kidnapped by people who run this racket and these children are either forced to beg or are beaten by them.

Poverty: Poverty is the main cause of child beggars. Because of poverty they can’t go to a school or eat proper food. Because of poverty children tend to beg for their families or work as a child labour to earn some money. How can a child study when he doesn’t even have money to have food? According to a report, 224 million Indians live below poverty line.^[5]

What can we do if we see a child beggars in Indian railway

There are too many ways to help child beggars in the Indian railway. You can help them through education, food, or providing shelter to them.

If you see a child beggar in Indian railway talk to the railway authority or to police about the child and take action. It’s better to do something than nothing. Children have heard about superheroes but haven’t seen one, be a hero for them so that their life can be changed. Children are god’s gift and they have all the rights to live peacefully. You can help them by supporting them financially or finding their families. Many NGO’s are available for helping these children who beg or steals on the railway. Do you know there is an app to save these children? People of India are working for them and you can support them by donating a certain amount of money. If you see a child beggar in Indian railway they follow these points:

• Talk to railway authorities so that they can provide you nearby NGOs that can help.
• Give the child to the NGO and if possible donate some amount to them for that child.
• You can even talk to police and get help from them.
• Some of the NGOs are provided below and the app for helping a child beggar is also provided:

App for child beggars

An app named Helping Faceless developed by Shashank Singh and Amol Gupta is using technology to fight human trafficking and kidnapping. You simply have to click a picture of the child and upload it on the app. With the help of the picture, a search process will start in order to match them with the previous record. If the match is found then the information will be forwarded to the non-profit organization who will help these children to connect with their families.

Their idea is simple, it is to give power in hand to people to help find missing children.

If you want to contact them click on this link https://docs.google.com/forms/d/e/1FAIpQLSdW0F_3UXBXD2aVYdujb1sSUD7VmFn48Tb0Eebw2IhRLd9Ksw/viewform.

Or you can mail them on community-manager@helpingfaceless.com.

This app is available only on Google play.

Some of the NGO that can help fight against the menace

1. Child Ashram Children’s home initiatives for life Development. This Ngo was started by J. Rama Chandra Sarath Babu. His NGO as discussed earlier is situated in Nellore District, Andhra Pradesh. If you find any child begging on Indian Railway near Andhra Pradesh, you can contact them for the child safety. This NGO Is located at CHILD Ashram and School,

Gollapalem Village, North Amulur Panchayat & BO, Allur Mandal & SO, SPSR Nellore District, Andhra Pradesh – 524315, India.

Telephone number as provided is +91 9440375370 and you can write a mail at childashramgp@gmail.com. You can even visit their website, the link for the same is provided here http://www.childashramgp.com.

2. Noble Cause Foundation: For a better cause. For a better world. This NGO was founded in the year 2014 by the inspirational words of Winston Churchill- “We make a living by what we get, but we make a life by what we give.” Today, Noble Cause Foundation is among the few NGOs of India that is working to improve the lives of people in society and with a mission to ensure health and dignity to the underprivileged.

This NGO is located at Noble Cause Foundation, 216, Sri Hari, First Floor, 14th Main, 2nd Cross, BSK 1st Stage, 2nd Block, Bengaluru – 560050

Telephone number: 080 60504070

Email: info@noblecausefoundation.co.in

Website: www.noblecausefoundation.co.in

3. CHETNA- Childhood Enhancement Through Training And Action. For them the only mission who are on the street homeless and are working. For them, these children are exposed to many threats and dangers including child labour, child trafficking, sexual abuse, extreme poverty, physical and mental abuse and homelessness. According to their statistics, a census of India carried out in 2011 found that the total number of children under the age of 18 involved in child labour is 23.8 million. 10.1 million of these children were aged up to 14.

According to United Nations Of the Rights Of Children, all children are born with fundamental rights:

• The Right to Survival – to life, health, nutrition, name, nationality
• Right to Development – to education, care, leisure, recreation, cultural activities
• Right to Protection – from exploitation, abuse, neglect
• Right to Participation – to expression, information, thought, religion

This NGO is located at CHETNA, 40/22 Manohar Kunj, Gautam Nagar, New Delhi

Telephone : +91–11–41644471, 41644470

E-Mail: info@chetnango.org

Website: http://www.chetnango.org/contact-us/

4. Ratna Nidhi Charitable Trust (RNCT): This NGO has a project called Safe Kids Foundation was set up in India in October of 2006. This project is for the kids to prevent childhood injury. Accidents kill 1.3 million children annually. Child beggars are the target group as they roam around roads and railway tracks. Safe Kids Foundation started working in the sphere of road safety by launching its First program ‘Walk This Way’ in October 2007. It educates both the school and non-school going children about Pedestrian safety thus spreading awareness of the hazards on the road and on railway tracks.

This NGO is located at Ratna Nidhi Charitable Trust, 5th Floor Vasant Vilas, 31, DD Sathye Marg, Mumbai – 400004 India

Ph: + 91 222 387 8930 / 23898930

Email: ratnanidhicharity@gmail.com

Website: http://www.ratnanidhi.org/contact-us/

5. I-India: giving street children a future. I-India is a non formal street school to ensure that working children get at least a basic education. Community support is received by I-India. I-India also provide popular and practical vocational training where older children can learn skills while earning some money

I-India, 23 Mahatma Gandhi Nagar, DCM, Ajmer Road, Jaipur 302021, India

Tel: +91-(0)982-815-3317,  +91-(0)941-404-8817, +91-(0)141-235-2576

E-Mail: mail@i-indiaonline.com

Web: www.i-indiaonline.com

6.Save the Children India: Save the Children works for children for their equality, equal education, equal nutrition, equal health, equal opportunities, gender equality and relief during natural disasters.

They have offices all over India. Mostly in all the states of India.

Address of the head office is provided:

Save the Children, Bal Raksha Bharat

1st & 2nd Floor, Plot No. 91, Sector – 44

Gurgaon (Haryana) – 122003, India

Tel: +91 124 4752000, 4752100

Email: donorsupport@savethechildren.in

Website: https://www.savethechildren.in

Conclusion

A single person can’t change everything but helping one child can make a difference. If everyone helps at least one child then in future the ratio of child beggars will be few. You can stop these rackets and mafia gangs who run these child beggars racket. Also, paying these child money means that you are supporting these rackets. Do not pay money to them, it is equal to destroying their lives. Help them a reasonable manner. DO NOT SUPPORT THESE HUMAN TRAFFICKING CARTELS.

References

^[1]http://www.dnaindia.com/india/report-300000-children-across-india-are-forced-to-beg-by-cartels-report-2218856

^[2]http://www.newindianexpress.com/states/odisha/2017/jul/03/drive-against-child-beggars-1623511.html

^[3]http://www.indiatimes.com/news/sarath-babu-former-clerk-in-indian-railways-is-father-to-over-120-children-264454.html

^[4]http://www.oneindia.com/india/the-begging-racket-of-bengaluru-and-the-mafia-behind-it-1830903.html

^[5] http://www.newindianexpress.com/business/2016/oct/11/224-mn-indians-live-below-poverty-line-wb-1526883.html

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Like any other country, India is governed by its own taxation laws i.e. Income Tax Act, 1961. A person who is a citizen of India and has his source of income located within India will be taxable in India as per the provisions of Income Tax Act. But what if the source of income of a person residing in India is located outside India? Will he be taxable in India or outside India (where the source of income is located)?

This is a very general yet important question which needs to be answered and the answer lies within the Income Tax Act itself.  It may seem tricky at once but if we focus on the provisions mentioned in the Act and correctly interpret it we will get our answer. Now moving to the answer of the question I raised above, let’s take a situation:

A person who lives in India owns shares in a company which is located and incorporated outside India (Foreign company). Now the questions are: Will he be liable to pay tax on the earning received from those shares? Will he be taxable in India or outside India (where the foreign company is situated)? How the tax to be paid is calculated on such income?

Income from shares owned in a Foreign Company

Owning shares in a foreign company is an investment made by a person in order to earn from those shares. It is kind of a source of income whose earning will be taxed. Two types of income can be generated from owning shares:

• Dividend received on shares

According to Section 4 of the Income Tax Act, income tax is chargeable on the “Total income” of a person and section 5 states that tax will be charged on the total income regardless of the source of the income. Section 10 of the Act provides us with a list of income which is not included in the total income to be taxed. Further, Section 10(34) states that income received by way of Tax dividend from an Indian company is not taxable under the Act. However, income received by way of dividend on shares of a foreign company is taxable. Hence, in the current situation, the person earning the dividend on the shares owned by him in a foreign company will be liable to be taxed under the head “Income from other sources” of Income Tax Act, 1961.

• Income received from such shares by their transfer

Income received from shares by way of their transfer is covered under the head “Capital Gains” of Income Tax Act. According to Section 45 of the Act, any profits or gains arising from the transfer of the capital asset effected in the previous year shall be chargeable to income-tax under the head. Capital gain can be:

• Short term capital gain – When a capital asset is sold within 36 months of its purchase (within 12 months in the case of shares or securities), income earned is short-term capital gain.
• Long term capital gain – When a capital asset is held for more than 36 months (12 months in the case of shares and securities), income earned on the sale of that asset is long term capital gain.

Hence, income earned from the transfer of shares held by a resident of India in a foreign company will be charged under head “capital gains” and the amount of tax charged will depend upon the period within which it is sold after its purchase i.e. whether the gain short term or long term.

Liability to be taxed in India or outside India

Section 5^[1] of the Income Tax Act states that: The total income of any previous year of a person who is a resident includes all income from whatever source derived which is-

• is received or is deemed to be received in India in such year by or on behalf of such person; or
• accrues or arises or is deemed to accrue or arise to him in India during such year; or
• accrues or arises to him outside India during such year:

Provided that, in the case of a person not ordinarily resident in India within the meaning of sub- section (6) of section 6, the income which accrues or arises to him outside India shall not be so included unless it is derived from a business controlled in or a profession set up in India.

Section 5(1)(c) makes it clear that a person who is a resident of India and is earning from a source located outside India will be liable to be taxed in India. In the present case, the source of income is the shares owned in a foreign company by the person who is a resident in India. Hence, the person will be liable to be taxed in India. As per the Section, his earning from shares will be included in his total income of the previous year regardless of its source.

Further, a person is said to be Resident of India^[2] in any previous year if he:

• is in India in that year for a period of 182 days or more; or
• having within 4 years preceding that year been in India for a period of 365 days or more and is in India for a period of 60 days or more in that year.

Computation of Tax under the head ‘Capita Gains’

Section 48 of the Income Tax Act provides for the mode of computation of tax under the head “capital gains”. It states that:

The income chargeable under the head “Capital gains” shall be computed, by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely:

1. Expenditure incurred wholly and exclusively in connection with such transfer;
2. The cost of acquisition of the asset and the cost of any improvement thereto.

Tax charged → Full value of the consideration received from the transfer of capital asset (subtracted by) expenditure incurred on such transfer (subtracted by) the cost of acquiring such asset and cost incurred on its improvement if any.

Double Taxation Avoidance Agreement (DTAA)

Besides focusing on the provisions of Income Tax Act, 1961 while calculating tax to be payable by an Indian resident whose source of income is Shares owned by him in a foreign company, one should also keep in mind the provisions of DTAA so that the person is not put in jeopardy by being taxed twice for the same income.

DTAA is a treaty signed between two or more countries with an objective to protect the taxpayers from being taxed twice for the same income. It applies to those situations where the taxpayer resides in one country but earn income in another country. It can cover either all source of income or can only be limited to certain sources. Currently, more than 80 countries are members to DTAA.^[3]

India is also a member of DTAA and as per its provisions, a resident of India whose source of income is from outside India will get deduction on the payment of tax in the other country if he has paid the tax on the same income in India. In the present situation, the person is a resident of India and is earning income from the country other than India. If he pays tax on that income in the country from where he is earning that income, he will be exempted from paying tax on the same income or the tax paid in that country will be deducted while calculating total tax to be paid on that particular income in India. This will give him relief from being taxed twice on the same income. But this is applicable in the countries to which India is a member under DTAA.

Conclusion

A person who is a resident of India under Section 14 of the Income Tax Act will be taxable in India of his earnings whether received in India or outside India. While charging tax on an Indian resident, it is charged on the total income of that person regardless of whatever source it is derived from. So if a person is living in India who is earning from the shares owned by him in a foreign country will pay tax in India. One important point needs to be taken care of while taxing a person is that he should not be taxed twice for the same income (double taxed).

References

^[1] Section 5(1) of Income Tax Act, 1961

^[2] Section 6(1) of Income Tax Act, 1961

^[3]http://www.thehindubusinessline.com/opinion/columns/all-you-wanted-to-know-aboutdtaa/article8607732.ece [11      July, 2017; 05:30 PM]

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In this article, Karan Singh of JGLS discusses the punishment for participating in a Mob lynching.

“Our country’s national crime is lynching. It is not the creature of an hour, the sudden outburst of uncontrolled fury, or the unspeakable brutality of an insane mob”–  Ida B. Wells

Introduction

Mob lynching is giving punishment to a person without any legal authority for any offence. This can be done by hanging or by beating. Mob Lynching is by a group of people of some community.

But what can be the reasons for mob lynching? It can be anything like religion or racism. In 2017 most cases of mob lynching is related to cow terror attack. This is the main reason for mob lynching recently. A recent report by Indiaspend, in the first six months of 2017, 20 cow terror attack has already happened. The attack included mob lynching, attacks by vigilantes, murder, harassment, assault, rape etc. In some attacks the victim was chained, beaten and stripped while in other the victim were hanged.^[1]

India is experiencing too much of violence between different groups. The war between Muslim and Hindus can be a reason of this mob lynching. Even in Kashmir, mob lynching is common.

History

Lynching by mob is a punishment that was served in past. It was usually associated in the united states towards Blacks. Lynching acquired with violence against black in nineteenth century. Lynching began in 1880s and was common in the South America until the 1930s. Between this period, an estimated 2400 black men, women and children were killed by mob.

It was used as a punishment against slaves who tries to escape from their owners. Sometimes, whites who openly opposed slavery were the victims of lynch by mobs. After the 14th amendment to the Constitution blacks were given all the rights of citizenships.

List of crimes that promoted lynch by mobs during this period were gambling, quarreling, arguing with a white man, attempting to vote, unruly remarks, demanding respect, and acting suspiciously. Even they were not given chance to have a fair trial.^[2]

Recent cases of mob lynching in India

October 9, 2015 (Udhampur truck attack): On basis of the rumors that slaughtered cows were being transported, Some Hindu extremists attacked a truck by throwing petrol bombs at it, leading to death of the truck driver.

March 2016 (Latehar district, Jharkhand): Two Muslim traders were taking their cattle to animal fair. Due to this reason mob lynched and hanged the traders.

April 5, 2016: Gau Rakshaks are a group of people who want to save cows. On April 5 Mustain Abbas was shot by Gau Rakshaks when he was returning back home after buying bulls.

September 8, 2016: In Jalpaiguri district, a man was lynched by mob on suspicion of stealing cattle.

April 1, 2017 (Rajasthan): On this day, mob attacked more than 15 people as they were transporting cows which resulted in the death of Pehlu Khan.

May 1, 2017 (Guwahati): Mob lynched 2 men in Assam after they suspected to be cattle thieves.

May 21, 2017 (Barmer, Rajasthan): One person was beaten to death in Loharwa village of Barmer district when two groups clashed over a land dispute.

May 31, 2017 (Jamshedpur): Mob beats 4 people to death on suspicion of kidnapping children. 3 more were lynched by the mob on the suspicion of being child lifters.

June 18, 2017 (Rajasthan): A CPI(ML) member-turned-activist was allegedly lynched to death in Rajasthan by government officials after he came to the rescue of women who were being photographed while defecating in the open.

June 23, 2017 (Nowhatta, J&K): Police officer Mohammed Ayub Pandith was lynched by an angry mob after he allegedly opened fire at a group of people who caught him clicking pictures near the mosque.

June 26, 2017 (West Bengal, Durgapur): On Saturday, barely two days before Eid, three Muslim youth were lynched in Durgapur village, West Bengal, by a mob of cow vigilantes over suspicion of cow theft. ^[3]

Most Recent Case in Kashmir

This is the most recent case of mob lynching in Kashmir. On 24th July 2017 has arrested 5 of the 12 persons identified to be a part of the mob.  Mohammad Ayub Pandith was the officer who was lynched by the mob. He was stripped and lynched by a mob outside the historic Jamia Masjid in Srinagar’s area.

The officer allegedly opened fire at a group of people who caught him clicking pictures near a mosque. Three people were injured in the firing. The deceased officer was making a video of stone pelting by locals and objecting to this, the mob attacked him. Officer opened fire through his service pistol in his own defence but the situation was out of control.^[4]

Punishment for mob Lynching

As mob lynching is increasing day by day and this leading to the killing of innocent people. Is the punishment enough that is there or do we need some strict punishment to stop the lynching.

Punishment for mob Lynching is not specific. It all depends on the facts of the case. For example, If mob commits murder then it will fall under 302 of the IPC. Murder in any form whether by a lone killer or a seething mob will fall under section 302 of IPC.

Section 302 of Indian Penal Code: Section 302 of IPC defines punishment for murder. It states that whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine. This section can be applied to a mob if victim is dead by the

Section 304 of Indian Penal Code: Culpable Homicide not amounting to murder. Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.^[6]

Section 307 of Indian Penal Code: Attempt to Murder. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.^[7]

Section 323 of IPC Punishment for voluntarily causing hurt.—Whoever voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.^[8]

Section 325 of IPC Punishment for voluntarily causing grievous hurt. Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.^[9]

These punishment which is provided above will only be applicable for a group of people in mob lynching. THese punishments have to be read with the sections provided below.

Section 34 of IPC. This section defines common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

If a mob committed murder, then this section will make all the person that was part of the mob will be committed with the section of murder with this section.^[10]

Section 141 of IPC: This section deals with unlawful assembly. An assembly of five or more persons is designated an “unlawful assembly”. If an assembly commits any wrong to anyone, they all will come under this unlawful assembly and will be prosecuted with the punishment.^[11]

Section 149 of IPC: Every member of unlawful assembly guilty of offence commit­ted in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

If there is a common objective of a mob for example a mob with common object of punishing the cow traders will come under this section.^[12]

Section 147 and 148 of IPC: In this section, rioting and its punishment is defined. Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.^[13]

Section 120B of IPC: criminal conspiracy If a group of people conspire to commit an offence punishable with death or imprisonment will be liable under this section.^[14]

Situation in India:

As we know that, in India there is no specific law that deals with mob lynching. Mob Lynching is a serious crime and should not be taken lightly. Government should take steps to stop communal dispute and mob lynching by different communities. Union Home Minister assured that the centre would ask the state government to pursue the mob lynching cases at the earliest. But the home minister was not able to explain what steps government is taking to ensure security of citizens.^[15]

But a new law is introduced to stop mob lynching by the government.

MUSUKA Manav Suraksha Kanoon:

As the mob lynching is rising there is a concern within the society. The concern by every citizen of India. Concern of not having a specific law against mob lynching, due to which the accused gets aways with the most heinous crimes. But the societies are coming together to make a new law against lynching. This law is called MUSUKA. The National Campaign Against mob lynching launched a draft law named MASUKA. Prakash Ambedkar, grandson of BR Ambedkar, and activist Tehseen Poonawalla drafted a law with Shehla Rashid, Shehzad Poonawalla and other members of National Campaign Against Mob Lynching (NCAML) in the presence of lawyer Sanjay Hegde, Professor Manoj Jha at the Constitutional Club today.

MSUKA is a law which is related to mob lynching only. It will define the word ‘mob’ and ‘lynching’. Lynching will be made a non-bailable offence. Life imprisonment may be given to convicts under mob lynching. The provisions for a time bound judicial enquiry which should not take more than six months. Also, the victims will receive compensation.^[16]

Conclusion:

Mob Lynching should be stopped as it promotes violence, hatred, war etc. Lynching is not at all healthy for a country and its society. People should understand that every life is important. Killing someone on just a suspicion is not justified. Also, people should not take law in their own hands. Courts and police are there to give punishment. Using violence is not the option left. People can change the society even by speaking. “Raise your voice not your hand” if you want to change something in the society. More than that government should pass the new law, MASUKA which will bring legal and political minds together to try and find a solution. And by doing this, many lives can be saved in coming years. STOP MOB LYNCHING!

References

^[1]https://www.newslaundry.com/2017/07/04/mob-lynchings-in-india-a-look-at-data-and-the-story-behind-the-numbers

^[2] http://www.encyclopedia.com/social-sciences-and-law/law/crime-and-law-enforcement/lynching

^[3]http://www.timesnownews.com/india/article/public-lynchings-that-shook-india-a-timeline/64250

^[4]http://indianexpress.com/article/india/nowhatta-mob-lynching-jammu-kashmir-dysp-mohammed-ayub-pandith-killed-jamia-masjid-srinagar-4717934/

^[5] Section 302, Indian Penal Code

^[6] Section 304, Indian Penal Code

^[7] Section 307, Indian Penal Code

^[8] Section 323, Indian Penal Code

^[9] Section 325, Indian Penal Code

^[10] Section 34, Indian Penal Code

^[11] Section 141, Indian Penal Code

^[12] Section 149, Indian Penal Code

^[13] Section 147, 148, Indian Penal Code

^[14] Section 120B, Indian Penal Code

^[15]http://caravandaily.com/portal/home-minister-at-loss-to-explain-govt-steps-taken-against-mob-lynching/

^[16]http://indiatoday.intoday.in/story/national-campaign-against-mob-lynching-masuka-manav-suraksha-kanoon/1/996682.html

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In this article, Karan Singh of JGLS discusses the Doctrine of Dilution of Trademarks.

 An image is not simply a trademark, a design, a slogan or an easily remembered picture. It is a studiously crafted personality profile of an individual, institution, corporation, product or service. –                                                                                      Daniel J. Boorstin 

Introduction

For better protection of trade marks for goods and services and for the prevention of the use of fraudulent marks, parliament repealed the 1958 Act and replaces it by the Trade Marks Act, 1999.Under Trade Marks Act, 1999 Trademark dilution was introduced. Trademark dilution is a trademark law concept giving the owner of a famous or well-known trademark power to forbid others from using the mark in a way that would lessen its uniqueness. To confuse the people, an unauthorised user makes similar marks of the famous trademarks. To stop this, Trademark Dilution is the concept to give power to the famous owner of the trademarks.

Dilution of a Trademark is a surface of Trademark infringement, where the owner of a well-known trademark has the power to prevent others from using their mark on the ground that it kills their uniqueness or lessen their reputation. Practically Speaking, No one has the right to copy a well-known trademark or to misuse the well-known trademark’s reputation. Instead, dilution protection aims to protect sufficiently strong and well-known trademarks from losing their singular association in the public mind with a particular product.^[1]

The likelihood of confusion is the test that answers the question of whether the new user’s use or reproduction of a trademark creates a likelihood of confusion among consumers as to the source of the new user’s goods such that infringes the well-known user’s rights.

Thus, the doctrine of dilution comes directly in contact with consumers.

The famous case of ITC v Philip Morris Products SA & Ors.^[2]

This case provides a good understanding of the trademark dilution cause of action in India. High Court while referring to section 29(4) of the Trade Marks Act, 1999 held a dilution cause of action established if the following essential elements are satisfied:

1. The impugned mark is identical or similar to the well-known mark
2. The well known or the injured mark has a reputation in India
3. The use of the impugned mark is without due cause
4. The use of the impugned mark amounts to taking unfair advantage of or is detrimental to the distinctive character or reputation of the registered trademark.

The use of “Namaste” logo by ITC on its cigarettes became the reason for ITC’s loss against Philip Morris. The High Court observed that not only use of Namaste logo alongside the Welcome Group trademark but also that the nonuse of such logo on the cigarette packs makes the trademark dilution claim raised by ITC nonsustainable.

The Court observed that ITC never used the mark on the cigarettes and that the fame of the ITC mark could not be extended to mid to high priced cigarettes; therefore the trademark dilution cause of action cannot survive.

There is a distinction between the judgment of Indian courts and US courts. Here the Indian court merely states that the marks should have a ‘reputation in India’ whereas in the US the mark must necessarily be famous. A Distinction needs to be made between a ‘famous’ mark and a mark with ‘reputation’. The reasoning behind is diluted rights being indeterminate in nature; the standard of fame required to claim them must be high as well. A mark which is not highly distinct cannot be diluted.

Doctrine of dilution in India

The Doctrine of Dilution was not present in the old law i.e. the Trade and Merchandise Marks Act, 1958, as is in the case of section 29(4) of the Trademarks Act, 1999 by which the doctrine of dilution has been first incorporated in a statute. But the doctrine of dilution was introduced by the court much before the Act having regard to internationally recognized status.

Section 29(4), Trade and Merchandise Marks Act, 1958

The trademark under 29(4) should be registered and should have a reputation in India. For the application of this section, the trademark should be well known and should have a reputation in India.^[3]

As per section 29(4) of The Trade Marks Act, trademark infringement in the form of dilution will occur only when the person uses the mark which is:

1. Identical or similar to the registered trademark which already has a reputation in India and
2. Use is on different goods or services than those covered by the registration.

Infringement which is occurred if it is found the use of offending mark produces the following results:

1. when the person takes unfair advantage of the reputed mark or mark having a distinctive character.
2. when the mark is harmful to the distinctive mark or reputed mark.

As the court has already used the doctrine of dilution prior to the act. One of the famous cases, where court used the dilution prior to the act is Daimler Benz Aktiegessellschaft & Anr. v. Hybo Hindustan, in which the issue was with the mark BENZ along with a three pointed human being in a ring which the defendant used or his undergarment line. The High Court, in this case, granted the injunction to the plaintiff and stated that copying of mark such as Mercedes-Benz by anyone would result in the perversion of the trademark law in India. The court stated that ^[4]“Such a mark is not up for grabs—not available to any person to apply to anything or goods. That name is well known in India and worldwide, with respect to cars, as is its symbol a three-pointed star”.

This is the first case In India where the court restrained the defendant from using the plaintiff well-known trademark on the sole ground to avoid confusion or deception into a picture.

Exceptions to dilution of trademarks

The following shall not be actionable as dilution:

Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person’s own goods or services, including use in connection with–

1. Advertising or promotion that permits consumers to compare goods or services; or
2. Identifying and parodying, criticizing, or commenting upon the famous mark owner r the goods or services.
3. All forms of news reporting and news commentary.
4. Any mark which includes parodies, criticism or comments. The exception of parodies was used in Louis Vuitton Malletier S.A. v. Haute Diggity Dog^[5], LLC, where the defendant manufacture apparels for dogs under the mark ‘Chewy Vuitton’ which was a parody the plaintiff famous brand ‘Louis Vuitton’ apparels. It was held by the court that ‘Chewy Vuitton’ did not dilute the trademark ‘Louis Vuitton’ because it was merely a parody of ‘Louis Vuitton’.

The Doctrine of Dilution In United States

 In United Sates, trademark rights are registered under “The Lanham (Trademark) Act”. This Act gives exclusive rights to seller or producer to register a trademark and to restrain his competitions from using that trademark.

The Lanham (Trademark) Act prohibits a number of activities including trademark infringement, trademark dilution, and false advertising. This Act is the primary federal trademark statute of law in the United States.

A trademark infringement is an unauthorized use or reproduction of a trademark that creates the likelihood of confusion in the mind of a consumer regarding the source of goods or services.

When the marks, products or services are similar, it is difficult to establish the “likelihood of confusion”. In a case in the United States where the plaintiff owned the trademark by the name “Slickcraft”, a company the use to sell boats for general family recreation. Plaintiff brought an action for trademark infringement against the defendant who used the mark named “sleekcraft” who also use to sell high-speed boats. The products served two substantially different markets. However, the court after applying the tests mentioned above stated that the use of sleekcraft was likely to cause confusion among consumers.

The Doctrine of Dilution in the United Kingdom:

In the United Kingdom, the registration of the trademark is under UK Trademarks Act 1994. Under this act “Likely to confusion” is an essential requirement for the finding of infringement under section 10(2) of the Act. This includes a likelihood of association that provides that if an identical or similar sign is used in conjunction with identical or similar goods for which a mark is registered then there is infringement if there is a likelihood of public confusion.

In cases, the court applies the three-part test. First, consider the identity similarity of the mark with the sign; second, analyze the concept of similarity between the respective goods and services; and third, determine whether there was a likelihood of confusion because of that similarity

In Decon Laboratories Ltd., v. Fred Baker Scientific Ltd^[6] the issue was with the mark “Decon”. The defendant used to sell identical products that include the word “Decon”. This act of defendant was held to be infringing as the principal function of the word was to describe the product and they did not distinguish the defendant’s products from those of the plaintiff.

Section 10(3) of the Act provides that a registered trademark is infringed in the UK if a similar or identical mark is used which is too similar to those which are already registered, where the trade mark has a reputation and the use of the sign takes advantage. This section is actually focusing on dilution of the trademark.

Conclusion

The Doctrine of dilution is the power given to the well-known trademark owner. This doctrine will help in stopping the fraudulent activities that happen over time and to maintain the reputation of the companies. These well-known companies do help in the growth of GDP of our country and it is the duty of the government to protect these companies from other competition and other fraudulent activities. Section 29(4) is provided as a remedy independent of the infringement action. The Doctrine of dilution works on the discretion of the courts and the tests given by the courts. If the trademark infringes the tests given by the court then it is not allowed in the market to avoid confusion.

References

^[1] http://www.bananaip.com/ip-news-center/itc-looses-trademark-dilution-battle/

^[2] ITC LIMITED VS. PHILIP MORRIS PRODUCTS SA & ORS.2010 (42) PTC 572 (Del.)

^[3] Section 29(4)(c) of The Trade Marks Act,1999

^[4] AIR 1994 Delhi 239, 1994 RLR 79

^[5] Louis Vuitton Malletier S.A. v. Haute Diggity Dog, 507 F.3d 252 (4th Cir. 2007)

^[6] Decon Laboratories Ltd v Fred Baker Scientific Ltd And Another: CHD 28 FEB 2001w

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In this article, Karan Singh of Jindal Global Law School discusses All you need to know about dissolution of a partnership firm.

Introduction

The Indian Partnership Act was enacted in 1932 and it came into force on 1st day of October 1932.^[1]

Section 4 of the partnership firm Act 1932^[2] defines partnership. It is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all.

Thus, the ingredients of this section is

1. There should be a relation or contract
2. Two or more persons should be there
3. Should agree to share the profit of a business carried on
4. Business must be carried on by all or any of them acting for all.

In a partnership firm, more persons are there. There should be minimum of 2 persons and maximum of 10 persons in the banking business and 20 in non-banking business to form a partnership firm.^[3]

Profit and loss in a partnership firm are shared between all the partners. There is an agreement by which profit and loss are decided between the partners. A Partnership agreement can be of two types. It can be an oral agreement or written agreement among the partners. In a partnership firm, consent of all the partners is required and one can not transfer his own shares to the third person without the consent of other partners. Partnership business solely depends on trust and good faith among the partners.

Advantages of Partnership firm

• Partnership business can be easily formed as it is a contractual agreement between the partners. Legal formalities are not that much and it can be easily formed through registration.
• Management in a partnership firm is well managed. As all the partners take interests in the affairs of the business because of earning the profit.
• The Risk in a partnership firm is minimum as it is shared by every partner of the firm. Every partner bear risk individually.
• Due to more number of persons in a business, there is a large number of resources for the business.

Disadvantages of partnership firm

• Partnership firm is always on a risk of loss of a partner. It does not exist for a long period of time. The death, insolvency of a partner can lead to the dissolution of a firm.
• A wrong decision of one partner can lead to the loss of every other partner. So while working in a partnership firm, the wrong decision should be avoided at any costs.
• Situations can occur where one partner does not agree with other partners. As in partnership firm, every partner has equal rights. This can cause a difficult situation for the business and mistrust can occur among the partners.
• Partnership business has unlimited liability and anyone can be asked to pay off the debt even with his personal properties.

Dissolution of partnership firm

Section 39 of the Indian Partnership Act, 1932^[4] defines dissolution of partnership firm. It defines the dissolution of partnership between all the partners of a firm is called the dissolution of the firm.

Dissolution of partnership firm is different from the dissolution of partners. Dissolution of the firm means to discontinue all the business activities within the firm. When the activities are stopped and the assets are used to pay off the debt it amounts to the dissolution of the firm. When a partner agrees to continue the same firm even after the retirement of a partner then it is called dissolution of partners and not firm. As the firm is still in process by the partner but the partnership between the partner is finished.

Dissolution of firm leads to the dissolution of partnership too. There is a contractual relationship among the partners which works with the firm. If the firm is dissolved then the partnership is also dissolved.

The Indian Partnership Act, 1932 defines dissolution in different ways. Section 40 to 44 states dissolution of partnership firm.

Dissolution of a partnership firm can be done in 2 ways:

• Dissolution without the intervention of the court(section 40-43)
• Dissolution by the Court (Section 44)

Dissolution without the Intervention of the court (Section 40-43)

Section 40 – Dissolution by agreement

A firm may be dissolved with the consent of all the partners or in accordance with a contract between the partners. The firm may be dissolved by the consent of all the partners or by entering into an agreement to dissolve the firm. This is one of the simple methods of dissolution of partnership firm and intervention of the court is not required in this.^[5]

Section 41-Compulsory Dissolution

A firm may be dissolved by the following points:

• Insolvency of partner: In case all the partners become insolvent or all the partners except one partner become insolvent then firm may be dissolved.
• Unlawful business: in case any unlawful activities are happening in the business of the firm to be carried on or for the partners to carry it on in partnership, the firm may be dissolved. Unlawful activities like selling of drugs, trading with alien countries, dealing in illegal products etc.
• For example, A, a resident of India and B a resident of China are partners. If war breaks out between the two countries then the partnership will become unlawful and hence it is dissolved automatically.^[6]

Section 42 – Dissolution on the happening of certain contingencies

This section focuses on the dissolution of the firm on happening of certain events. Dissolution of the firm can take place if the following events take place:

• Expiry of fixed term: If the contract of a partnership firm is on a fixed term. Then, dissolution of that firm will take place on the expiry of that contract. when the contract expires dissolution will take place.
• If the firm was formed for a certain number of task. Then on completion of that task, the firm ceases to exist. If the firm is constituted for a particular task then on completion of that task firm will dissolve, unless there is a contract or agreement.
• Dissolution can also take place with the death of a partner. Dissolution of the firm can take place only when the other partner chooses too. If he wants to continue the firm even after the death of a partner then there will be no dissolution of the firm. Only the partnership will be dissolved.
• When one of the partners or all the partners is insolvent then dissolution can take place. Even the insolvency of one partner can dissolve the firm.
• Dissolution can also take place if any one of the partners resigns. If one partner thinks not to continue further then he/she can resign but this will also dissolve the firm.^[7]

Section 43 – Dissolution by notice of partnership at will

Partner in a partnership firm can dissolve it by giving notice of dissolution to other partners. The notice should be communicated to the other partners as mentioned in the agreement and if not mentioned then a mode of communication should be reasonable. The notice of dissolution should not be in between any transaction and is a partner give notice of dissolution in between the transaction his notice should be held until the time the transaction is completed. The notice should be clear and should not be confusing in any sense. It should be properly communicated to the other partners.^[8]

Dhulia-Amalner Motor Transport … vs Raychand Rupsi Dharamsi And Ors.^[9] section 43 is explained in 3 points. It requires three things: (1) the giving of a notice, (2) the notice has to be in writing, and (3) the notice must express an intention to dissolve the firm. Unless these 3 things are complied with, the provision of section 43 of the Act would not come into operation at all.

Section 44 – Dissolution By the court

Dissolution of a firm can be done by suing the other partner and bringing the case before the court. The court may dissolve a firm on any of the following grounds:

• When one of the partners becomes of unsound mind and is unable to continue further than in this case a suit may be brought up by the other partner to dissolve the firm. Unsoundness of a partner does not automatically dissolve the firm but it can be a ground for dissolution. It is not necessary that the unsoundness should be permanent.
• If a partner has become permanently incapable of performing his duties as a partner then another partner can sue for dissolution of the firm. The Court may order for dissolution of the firm. Incapable to perform his duties can be due to any reason like going abroad for long time or imprisonment of a partner for a long time. As a partner won’t be able to perform his duties, the court will order for dissolution of the firm.
• If there is any misconduct by a partner other than the suing partner due to which firm has suffered loss, then the court may order the dissolution of the firm. Misconduct or guilty of conduct which is likely to affect prejudicially the carrying on of the business. Then the other partner can sue the partner for misconduct which is the ground for dissolution of the firm.
• Agreements are the most important document that all the partners must follow. If any partner breaches the agreement regarding the conduct of business then the other partner can sue him for breach of an agreement which is a ground of dissolution. The court may order for dissolution of a firm if a partner is found guilty of constant breach of the agreement and it becomes impossible to continue the business.
• When a partner transfers whole of his share/interests to the third party for permanently then it can be a ground for dissolution of firm or has allowed his share to be charged under the provisions of rule 49 of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) or has allowed it to be sold in the recovery of arrears of land revenue or of any dues recoverable as arrears of land revenue due by the partner.
• If the firm is suffering from continuous loss, then the court may order for dissolution if there is no capital available for further growth.^[10]

Section 45-Liability of partners after dissolution

Section 45 defines liability for acts of partners done after dissolution. The partner, in this case, continue to be liable as such to the third parties for any act done before the dissolution. Liability of a partner does not finish automatically, the liability of a partner finishes when all the event are finished that has been taken up before the dissolution of the firm until public notice is given of the dissolution. A Partner who dies or who is adjudicated an insolvent or a partner who retires from the firm is not liable under this section for acts done after the date on which he ceases to be a partner. Notice of dissolution can be given by any partner.^[11]

Section 46 – Rights of partners to have business wound up after dissolution

After the dissolution of the firm, every partner is entitled to equal rights or according to the contract. All the partners are entitled to the property of the firm applied in payment of the debts and liabilities of the firm and to have the surplus distributed among the partners or their representatives according to their rights. These rights are given when winding up of the firm is taking place.^[12]

Section 47 – Continuing Authority of partners for purposes of winding up

After the dissolution of the firm the authority of each partner to bind the firm continues so far as for being necessary to wind up the affairs of the firm and to complete the transactions begun but unfinished at the time of dissolution. This section focuses on the transactions that are unfinished until the time of dissolution. Partners have to finish all the transactions that are related to a 3rd party for the purpose of winding up the business. It also states that firm is not bound by the acts of a partner who has been adjudicated insolvent but this provision does not affect the liability of any person who has after the adjudication represented himself as a partner of the insolvent.^[13]

Section 48- Mode of settlement of accounts between partners

This section defines all the modes in which the accounts can be settled among partners after dissolution.

The following rules shall be observed subject to agreement by the partners:

• All the losses of the company including deficiencies of capital shall be paid out of profits first, then out of the capital and lastly if necessary by the partners individually in proportions to which they are entitled to share profits.
• All the assets of the company including all the sums contributed by the partners shall be applied in the following manner:
• In paying all the debts of the firm to the third parties
• in paying each partner rateable what is due to him from the firm for advances as distinguished from capital
• in paying to each partner rateable what is due to him on account of capital
• The residue shall be divided among the partners in the proportions in which they were entitled to share profits.^[14]

Section 49- Payment of firm debts and of separate debts.

Payment of Joint debts and separate debts due form any partner is explained in this section.

The property/assets of the firm shall be applied first in payment of the debt of the firm and if there is any surplus then of each partner shall be applied in payment of his separate debts or paid to him.

The separate property of any partner shall be applied first to the payment of his separate debts and then the surplus in the payment of the debts of the firm. ^[15]

Section 50 – Personal profits earned after dissolution

The provision of clause (a) of section 16(Personal profits earned by partners) shall apply to the transactions by surviving partner or by the representative of a deceased partner after the firm is dissolved on account of the death of a partner and before its affairs have been completely wound up.^[16]

Section 51 – Return of premium o premature dissolution

Where a partner paid a premium on entering into partnership and the firm is dissolved before the expiration of that term due to death of a partner, then he shall be entitled to repayment of the premium or of a part as may be reasonable. The term upon which he became a partner and to the length of time during which he was a partner such part will be repaid as may be reasonable except the dissolution is mainly due to his own misconduct the dissolution is in pursuance an agreement containing no provision for the return of the premium or any part of it.^[17]

Conclusion

In Indian Partnership Act, 1932 provisions are given by which a partnership firm can be dissolved before the court or outside the court. The grounds on which dissolution of firm takes place is written clearly in the act. The act is to make things clear and just in a partnership firm so that partners do not take advantage of each other. Act also help us to maintain a stable environment in the firm.

References

^[1] Section 1 -It shall come into force on the 1st day of October 1932, except section 69, which shall come into force on the 1st day of October 1933.

^[2] Section 4, Indian Partnership Act, 1932

^[3] Companies Act 2013

^[4] Section 39, Indian Partnership Act,1932

^[5] Section 40, Indian Partnership Act,1932

^[6]  Section 41, Indian Partnership Act,1932

^[7] Section 42, Indian Partnership Act,1932

^[8] Section 43, Indian Partnership Act,1932

^[9] AIR 1952 Bom 337, (1952) 54 BOMLR 294, ILR 1952 Bom 795

^[10] Section 44, Indian Partnership Act,1932

^[11] Section 45, Indian Partnership Act,1932

^[12] Section 46, Indian Partnership Act,1932

^[13] Section 47, Indian Partnership Act,1932

^[14] Section 48, Indian Partnership Act,1932

^[15] Section 49, Indian Partnership Act,1932

^[16] Section 50, Indian Partnership Act,1932

^[17] Section 51, Indian Partnership Act,1932

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Why do VCs refrain from investing in LLP?

VCs stands for Venture Capitalists and LLP stands for Limited Liability Partnership. These two terms are very important in the business field. As the business market boost up, the scope of these two also raises up with recent advancement of doing business. With the era of globalization, now we are in the world of global business methods, that helps the foreign investors as well as the native investors to invest in the different startups in order to earn and generate huge revenue.

I will first discuss the meaning of the terms ‘ Venture capital’ and ‘LLP’ in order to give a clear picture of these kinds of business.

VENTURE CAPITAL

It is a private or institutional investment made into early-stage / startup companies (new ventures). As defined, ventures involve risk (having uncertain outcome) in the expectation of a sizeable gain. Venture Capital is money invested in businesses that are small; or exist only as an initiative, but have huge potential to grow. The people who invest this money are called venture capitalists (VCs). The venture capital investment is made when a venture capitalist buys shares of such a company and becomes a financial partner in the business.

Venture Capital is the most suitable option for funding a costly capital source for companies and most for businesses having large up-front capital requirements which have no other cheap

Alternatives. Software and other intellectual property are generally the most common cases whose value is unproven. That is why; Venture capital funding is most widespread in the fast-growing technology and biotechnology fields.

FEATURES OF VENTURE CAPITAL

• High Risk
• Lack of liquidity
• Long term horizon
• Equity Participation and capital gains
• Venture Capital investments are made in innovative projects
• Supplier of venture capital participate in the management of the company.

ADVANTAGES OF VENTURE CAPITAL

• They bring wealth and expertise to the company
• Large sum of equity finance can be provided
• The business does not stand for the obligation to repay the money

DISADVANTAGES OF VENTURE CAPITAL

• It is a lengthy and complex process
• It is a uncertain form of finance
• As the investors become owners, the autonomy of the founders is lost^[1]

LIMITED LIABILITY PARTNERSHIP

Limited Liability Partnership entities, the world wide recognized form of business organization has been introduced in India by way of Limited Liability Partnership Act, 2008. A Limited Liability Partnership, popularly known as LLP combines the advantages of both the Company and Partnership into a single form of organization. In an LLP one partner is not responsible or liable for another partner’s misconduct or negligence, this is an important difference from that of a unlimited partnership. In an LLP, all partners have a form of limited liability for each individual’s protection within the partnership, similar to that of the shareholders of a corporation. However, unlike corporate shareholders, the partners have the right to manage the business directly.An LLP also limits the personal liability of a partner for the errors, omissions, incompetence, or negligence of the LLP’s employees or other agents.

Limited Liability Partnership is managed as per the LLP Agreement, however in the absence of such agreement the LLP would be governed by the framework provided in Schedule 1 of Limited Liability Partnership Act, 2008 which describes the matters relating to mutual rights and duties of partners of the LLP and of the limited liability partnership and its partners.

LLP has a separate legal entity, liable to the full extent of its assets, the liability of the partners would be limited to their agreed contribution in the LLP. Further, no partner would be liable on account of the independent or un-authorized actions of other partners, thus allowing individual partners to be shielded from joint liability created by another partner’s wrongful business decisions or misconduct.

Limited Liability Partnership Act, 2008 came into effect by way of notification dated 31st March 2009.

ADVANTAGES OF LLP

• Low cost of formation
• Easy to establish
• LLP & its partners are distinct from each other
• No requirement of any minimum capital contribution
• Partners are not liable for the acts of partners
• Less complication level
• Less government interference
• Easy to dissolve and wind up.

DISADVANTAGES OF LLP

• Any act of the partner without the anither partner may bind the LLP
• Under some cases, the liability can also be extend to the personal assets of the partners
• Cannot raise money from Public.^[2]
• Inability to raise VC funding.

Why VCs are unwilling to invest in LLP

Now the question comes that after having so many advantages of LLP, why the Venture capitalists are unwilling to invest in it? The answer for this is because all ‘shareholders’ in an LLP must be partners,which have certain responsibilities towards the entity. No VC wants any of these responsibilities and would therefore invest in a private limited company instead. The other points to mention as to why LLP is not a good option for VCs are as follows:-

Limitations on starting an LLP

To form a LLP there is minimum requirement of members. Atleast 2 members have to be there in order to start it. LLP cannot be formed by the single person. Any NRI/Foreign national who want to form a LLP in India at least need one national resident. Two foreign residents cannot form it without having any national resident along with them.

It takes more days to form as it needs all partners signature for each and every document which is then need to attached to required e-forms. Therefore, self attestation of each partner on documents is more as to compare than formation of any pvt. Company.

Assets of LLP

Partners undertake to contribute some amount towards LLP firm which they contribute in the form of cash or assets while executing the LLP agreement. Once cash or assets are contributed to LLP, it cannot be returned to the partners of an LLP unless there is any specific provision mentioned in LLP agreement.

Difficulty in Transfer of Ownership

Transfer of Ownership is not easy as it can only be transferred after the consent of all the partners. The resolution to be passed by majority in numbers of the partners in some of these mentioned cases:- increase or decrease in contribution, increase or decrease of designated partners, alteration of working partners, amalgamations, shifting of the registered office of firm, opening or closing of bank account.

Offences and Penalties

LLP has its own Act and contains provisions for offences and penalties. Some provisions of the Act are:

1. For default and non/compliance on procedural matters such as delay in filing of e-forms, one has to pay default fee on daily basis for which the default continues,
2. Such default fee is payable at the rate of rupee one hundred per day after the expiry of the date of filing up to a period of three hundred days.
3. The offences can result in either:- paying fine or imprisonment with fine of the offender.

Permission of FDI in LLP

Foreign company or individual can invest in LLP in India but it requires prior government approval. As per FDI Policy, FDI in LLP is allowed only through Government route, FDI in LLP under automatic route is not permissible. Further FDI in LLP through Government route is allowed to only those sectors where 100% FDI is allowed under automatic route under the FDI policy.

Limitation in External Commercial Borrowing (ECB)

LLP is not allowed to raise External Commercial Borrowing (ECB). Thus LLP cannot take commercial loans from its foreign partners. FII’s (Financial Institutional Investors), banks from outside India, any financial institution outside India or any other entity outside India.

CONCLUSION

Though LLP is one of the best business startup option for any investor but it has some major demerits which give a hurdle to many. Venture capitalists refrain themselves to invest in LLP simply because of its complex formation and also of its sharing responsibilities of being a partner. They simply opt for private companies rather than LLP due to less responsibilities and liabilities.

The unwillingness of VCs can be clearly seen through the demerits of LLP which are discussed above. If they have a choice of having lesser complexities and flexible legal formalities, they would definitely choose Pvt. company over LLP.

References:

• http://www.llponline.in/what_is_llp.php
• http://www.marketexpress.in/2013/04/limitations-disadvantages-llp.html
• http://www.edupristine.com/blog/venture-capital
• https://www.vcexperts.com/buzz_articles/297

^[1] http://www.edupristine.com/blog/venture-capital

^[2] http://www.llponline.in/what_is_llp.php

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In this article, Karan Singh of Jindal Global Law School discusses whether a company or person can claim to have a copyright for a color pattern or shade or not.

Color branding and trademark right

An individual cannot just own a color. The color of a brand is totally different from a color trademark. A company cannot register a color in its own name. But A company can own a certain pattern of a particular color like McDonald does not own the red color but it does own the pattern or the shape in that red color and hence no one can copy it at all.

The TM mark and ® marks mean that the company has claimed rights to the image (the symbol or word or combination of both) that represents the company. The TM mark can be used on any design that you wish to designate as a trademark. The registered trademark symbol (®) is a symbol that provides notice that the preceding word or symbol is a trademark or service mark that has been registered with a national trademark office. Copyright (the © mark) is different. Copyright is for the original author or creator of any creative work like writing, images, music, software, etc and the creator have the sole right to distribute, publish, sell or copy that work for a set period of time. All the images and articles in the color matters website are protected by copyright.

Section 10 of the Trade Marks Act states that a trademark can be limited to a particular color or combinations of colors. However, such limitation as to color will only be allowed in determining the distinctive character of the mark. However, if no color has been specifically claimed, then it shall be deemed to be registered for all colors.

Distinctive character cases in India

If a mark is being applied for registration for a combination of colors and that is the distinctive feature of the mark, then this should be mentioned at the time of the filing. However, when a particular color is claimed, an applicant is required to submit evidence to show that the said color combination or color that has been claimed is solely associated with the applicant or exclusively designates their goods. If the color that is applied is common to trade then it might be difficult to claim distinctiveness over the color. For example, Red as a trademark for a drink may be distinctive but when the color red is claimed for packaging of those bottles would be non-distinctive.

Cadbury was successful in stalking its claim against Nestle to register its color purple on the whole of the surface of the chocolate bar, eating chocolate and drinking chocolate. The ruling stated that the color had acquired a distinctive character and people associate the color with Cadbury chocolates. Evidence, in the form of a public survey, proved that the public associated the color with Cadbury chocolate.

How color matters?

Colour matters a lot in day to day lives. As color can make your brands value more or less. Brands and color are linked together as color offers a distinct method of conveying the message to people. It Offers people to remember the company by its color as colors are easy to remember. Colors should be used in one’s mark so that people can easily remember it. Colour does matter when it comes to branding and marketing.

Some companies have trademarked color on the basis of the function that they serve to the society. And even courts have admitted that certain colors are trademarked only if they serve some purpose. Conor does matter to companies and if their competition tries to copy it, legally it can be stopped. For example, if a red colored M is taken by a third person for the company, MacDonald can stop that person legally as it is likely to cause confusion in the mind of people. Generally speaking, it is very important to keep in mind that the trademark should not cause confusion in the mind of the public. It should be different and the color should not match the existing trademark. Some examples are given below:

Case study – Tiffany & Co.

Colour trademark is different when the color itself is a brand. Like a well-known company Tiffany & Co. Where the owner of the company Charles Lewis Tiffany chose the color for the cover of Blue Book. Colour Tiffany Blue was later used on everything from shopping bags and jewelry boxes to any advertising for the company. Colour Trademarks can only be available for certain pattern and shapes or for certain purpose. Like in the case of Tiffany, the color is only protected for the bags, boxes or advertisement from other jewelers.

It’s important to understand that they only own that blue in situations where it could be confused with their products. Tiffany only owns “robin’s egg blue” for its boxes and bags. Robin’s egg blue can be used by anyone and anywhere. An individual can use this color on his walls legally. This color for Tiffany is only protected from the other jewelers where confusion can be created by others on a brand.

In another case of Cadbury. When you see a chocolate candy in the purple wrapper, you know its Cadbury. By seeing if customers are able to identify the product, then the product’s color matters for its reputation. Cadbury Purple is protected by trademark only for chocolate products. If any other company makes a chocolate with the purple wrapper, then Cadbury can stop that company from making it legal. It is very important to understand the role of color in one’s company.

Deere & companies have a distinct color trademark. Its trademark consists of leaping deer symbol, name and yellow and green color scheme. This company provides outdoor power equipment. The company owns the rights to all three of these and it prohibits any other such machinery maker from using them separately or combined. The color yellow and green cannot be used together by any other machinery maker.^[1]

Caterpillar Yellow

The Company CAT prohibits from using its distinct Caterpillar Yellow without its permission. However, Yellow is a functional color for road construction, so Cat cannot prevent other companies from manufacturing yellow colored equipment.

Post-Its

Manufacturing giant 3M has trademarked the color canary yellow used on its famous Post-It Notes. They even sued Microsoft for infringement when it created a digital version of a sticky note product in the same color.

Red soled shoes

Christian Louboutin shoes are all known for red sole. They are popular for only one this and are not cheap. Recently, Dispute arose when Yves St. Laurent began selling shoes with red soles. Louboutin sues Yves in 2008 who had already trademarked the red sole. The court held that Louboutin’s red sole should not be doubted as it fulfilled the fundamental purpose of trademark and the colored soles have been used successfully as the trademark. The color can be trademarked only if they serve a purpose to identify the source of a product. But can red sole serve any other function than the source of a product? This question was put up in the case. Louboutin’s stated that red serves ‘energy’ and was ‘sexy’ and ‘engaging’. So while the court reasoning, in this case, makes some sense- a color for shoe soles is not going to foster a competitive marketplace- It tends to encourage greater use of visible trademarks.

Registration Of Colour Trademark in India

In order to obtain a color trademark in India, it is important that the color or combination of color distinguish the good and services of one party from the other party. Also, the color or combination of color should be used in a certain pattern or it should serve some basic purpose. For example, if the color pattern is associated with the packaging and it is known to the society that the color pattern is associated with the respected company, then the color trademark can be obtained.

But if the color is not used in any pattern or does not serve a purpose, then it is difficult to obtain the trademark as it is likely to cause confusion. It is likely to be rejected by the examining officer. Colour trademark can be of two type single color or combination of colors trademark.

A single color trademark can be obtained only if the color is unusual or different and is recognized by the customers. It should serve some reputation in the society and it should be well known for that class of goods or services. However, single color marks can be obtained if the owner can prove its existence in the society or proves that it is a well-known mark. But the mark can be rejected if the mark does not stand as a well-known mark or have an unusual pattern in it.

The combination of color can be registered if they are unique in nature and the mark is used to distinguish the goods and services from others. If a company have a color pattern which makes it distinct from the competition it can be registered.  It is difficult to obtain trademark if the combination of color applied is simply from the certain purpose and the color combination is not recognized in the society. For example, a combination of color like white and yellow can not be registered by any toothpaste company as every toothpaste company uses these colors.

Conclusion

Section 10 of the Trade Marks Act states that a trademark can be limited to a particular color or combinations of colors. If a mark is well known and the color plays a vital role in that company then it can be registered. If the mark is recognized by the people by that color and the value of the mark is zero without that color then it can be registered under section 10 of Trademarks Acts.

Reference

^[1] http://www.businessinsider.com/colors-that-are-trademarked-2012-9?IR=T#green-and-yellow-color-scheme-8

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In this article, Aklovya Panward of INLU discusses Regulations needed if India legalizes sports betting.

Introduction

The apex court recently decided to ponder upon the legalization of betting and gambling in sports which is at the present time prohibited and punishable under law. The reason for this decision is the losses occurred to the country due to unregulated betting. It has been estimated that the legalization of betting would be beneficial for the country as it will generate a revenue of around rupees 12000 crores. This amount will be both from gambling and bet altogether.

The government is envisaging positive outcomes behind these decisions. There is a speculation that legalizing betting and gambling will help the government to distinguish between harmless batting and corrupt activities like match fixing. It will also provide credibility to the game because now the government will have more control over the sport. It will also provide credibility to the game because the government will have more control over the unwanted elements which are existing in the betting business. Now due to un-regulation various shady transactions are taking place whether it be by huge crime syndicates or by the Mafia who are controlling this business. Law Commission of India is already going through the issue and it has issued a public notice inviting suggestion from stakeholder and the general public, the main question which law commission of India has put is whether gambling and betting should be legalized or not.

Due to ethical and moral reasons, gambling and betting are banned in most of the countries. Even after getting banned, it is already happening through the internet and that is why there is a need of prior regulation and an updated law. Legalization of betting could regulate an informal industry of rupees 300,000 Crores.

One such example of immense betting in sports is of cricket, it is always surrounded by scandals of spot fixing.

Before legalizing betting and gambling there is amendment required in certain provisions and laws. Example: Indian Contract act-It treats an agreement based on a wager as void.

Multiple problems that arises from criminalisation of unregulated sports betting

Due to unregulated gambling and betting market, there is a lack of information about this industry and it gives rise to black marketing. There is no record of the people who are gambling whether they are minor or gambling addict due to which this threat cannot be combat. Not only this, the flow of money also can’t check whether it is being used for other illegal services. This also leads to match fixing because the betting pattern cannot be understood till the time it is running in the underground market.  It is estimated that Govt. can earn Rs. 12,000-Rs. 20,000 Crores as taxes which now going in vain. Regulating betting provides the framework to address all of these problems.

SCENARIO IN OTHER COUNTRIES

There are 3 parts in which countries can be divided:

1. Complete Ban- the Middle East and South East Asia, they consider gambling and betting as sinful due to religious influences.
2. Partial Ban-Most of the countries remain between 2 extremes these states neither tight the grip nor lose it. In these countries, the Government pursues a framework which legalises gambling but also seeks to regulate and control gambling with an idea of generating revenues and taxes. They use this revenue for the purpose of a social issues like the funding of the industry itself, sports or cultural and charitable causes. States which license gambling include the UK, many European states, Australia, and a number of States in the USA.
3. Liberal from the ban- The US State of Nevada, the Island of Macau and some small island states where online gambling is licensed. As they consider it as an export industry from where trade and revenue can be dug out.

Most countries, however, operate somewhere between these two extremes.

REGULATORY SYSTEM IN OTHER COUNTRIES

Common characteristics of the regulatory system of the countries:

1. Statutory regulatory bodies or gambling commissions created by the states- They distribute licenses.
2. The national regulatory-

• It can regulate disputes in a condition where there will be breach involving at more than one state’s jurisdiction.
• It can formulate frameworks for the common people for dispensing information about betting, the places of betting and the events of the betting.
• The regulator authorizes by the center can keep a check on the operator’s activity and can go for inspection at the operator’s premises to have cooperation from him.
• It also provides information related to remedies, warnings, and penalties related to the issue. They can also suspend licenses and initiate criminal prosecution.

THE LAWS RELATED TO BETTING IN INDIA

The State of Sikkim has amended the “Sikkim Online Gaming (Regulation) Rules 2009”.It Legalises sports betting in the state with the provision of license.

Some of other State laws are: “The West Bengal Gambling and Prize Competitions Act, 1957, the Bombay Prevention of Gambling Act, 1887, the Madhya Bharat Gambling Acts, 1949, the Punjab Public Gambling Act, 1961, the UP Public Gambling Act, 1867, the Kerala Gambling Act, 1960, the Karnataka Gambling Law/Act, Goa, Daman and Diu Public Gambling Act, 1976, Sikkim Online Gaming (Regulation) Act, 2008, Madras City Police Act, 1888 to name a few.”

REGULATORY REGIMES NEEDED FOR SPORTS BETTING.

Regulatory regime consists of two aspects: One being the “regulatory scope” and other is the “regulatory stringency”. First, will be defined as the area covered by the regulation while the latter one characterizes the degree to which the organization’s behavior is constrained by the regulation. It is measured by the power of the regulator.

Regulatory scope

Establishment of Regulatory Environment

Before making any regulation there is a need to understand the object of regulation. Once the objective is been set then the environment of regulation will be easy to develop. Establishing a regulatory environment requires that one first defines the specific object to be regulated. Within the wider ambit of gambling and betting in sports, the core issue is to determine whether a game is a “game of chance” or “game of skills”. It is important to note that the Public Gambling Act, 1867 provides that the provisions of the Act shall not be applied to any games of skill. The Hon’ble Supreme Court in the case of Dr. K.R Lakshmanan vs. State of Tamil Nadu (AIR 1996 SC 1153) regarded horse racing as a game of skill and observed as follows: “Betting on horse racing or athletic contests involves the assessment of a contestant’s physical capacity and the use of other evaluative skills. Horse racing is an organized institution. There is nothing illegal in horse racing: it is a Lawful sport. We have no hesitation in reaching the conclusion that the horse-racing is a sport which primarily depends on the special ability acquired by training. It is the speed and stamina of the horse, acquired by training, which matters. Jockeys are experts in the art of riding. Between two equally fast horses, a better-trained jockey can touch the winning-post. In view of the discussion and the authorities referred to by us, we hold that the horse-racing is a game where the winning depends substantially and preponderantly on skill.”

In the case of State of Andhra Pradesh vs. K. Satya Narayana (AIR 1968 SC 825), the Hon’ble Supreme Court held that “The “three cards” game which goes under different names such as “flush”, “brag” etc., is a game of pure chance. Rummy, on the other hand, is mainly and preponderantly a game of skill.”

These case has provided the framework that what should be the object of the regulation of betting and gambling in India. As B.S. Chauhan the appointed chairperson of Law Commission of India said in a seminar.

“Development of gambling industry in India requires a three-pronged strategy reforming the existing gambling (lottery, horse racing) market and legalizing the present illegal market (introducing new products) while introducing stringent and overarching regulations,” he had said at a seminar.

The determining principle that what is the game of chance or of skill should be left to the government to define. If the principle is that the game of skill should be out of the ambit of the law then there must be a classification of games on this basis. As the game of chance can be arbitrary according to the international perspective. In this matter, some states of the U.S., France, Switzerland, or Italy, attempt to assess the detailed levels of both chance and skill to determine whether a particular activity should be regulated or not by the gambling laws.

Understanding the types of Sports betting

The state should decide that what forms of sports betting they are willing to allow. In India, there should be a detailed regulation on what forms of betting or gambling can take place.It depends on the ability of the government to maintain the records and data of a particular event taking place. As, in Switzerland, live betting and exchange betting are prohibited, however in the United Kingdom, all forms of betting can be found.

Gambling and betting on particular events have various forms

Traditional betting-It refers to betting with probabilities on the winner of a specific match,

Spread betting-In this form of betting odds are on the difference of the final results between two teams or players.

Pari-mutuel bet-In this betting the probabilities initially set as equal across the various contestants and then altered according to the accrual of bets from numerous actors.

Live betting is made when the game is in live form and teams are playing and the odds are therefore altered in the real time according to progress in the match.

Exchange betting-In this betting nobody is officially setting the odds, but it is the punters themselves who agrees or discard the offers of odds proposed by other players.

Which betting mode can be obtainable to customers differs from nation to nation.

Access to the market

One important thing government have to keep in mind before making the regulation for legalizing betting and gambling is the access to the market. In sports betting there are various types in which market access can occur. It can be-

1. An exclusive right attributed to one organization– In Switzerland, two publically owned organizations have the right to offer sports betting.In France, the Pari Mutuel Urbain (PMU) offers to bet on horse races while the national lottery organization, Française des Jeux (FDJ), offers sports betting.
2. Establishing a monopoly– In Germany, Oddset is a state monopoly founded by the sixteen Länder to operate sport betting games throughout the country.
3. License system that allows a limited or unlimited number of sport betting operators– In the UK, and Austria. In contrast, French online sports betting market is based on an open number license system.

It depends on the Indian Government whether they want to monopolize it or want to form an organization for the same.

Profit to the public

Before making any regulation there must be some provisions for public benefit. As In Switzerland, the profits produced by the Loterie Romande and Swisslos out of sports betting are allocated to the professional and amateur sport.Similarly, In Germany, Oddset is allocating the revenue generated in each Land to the regional authority that uses it for different ends such as social projects, the state budget or the sport. In France, the FDJ allocates a share of the revenues to the state budget which can then be used for sport, whereas the revenues of the PMU are mostly the revenues to the state budget which can then be used for sport, whereas the revenues of the PMU are mostly attributed to the equine industry. In the UK and Austria profits are not used for a public end directly.

Regulatory Stringency

Power of the regulators

In other countries the national regulatory have the following power:

The national regulatory-

• It can regulate disputes in a condition where there will be breach involving at more than one state’s jurisdiction.
• It can formulate frameworks for the common people for dispensing information about betting, the places of betting and the events of the betting.
• The regulator authorizes by the center can keep a check on the operator’s activity and can go for inspection at the operator’s premises to have cooperation from him.
• It also provides information related to remedies, warnings, and penalties related to the issue. They can also suspend licenses and initiate criminal prosecution.

In the UK, the Gambling Commission, an independent body controlling and monitoring the gambling sector (at the exception of the National Lottery).

In Italy, the “Amministrazione Autonoma dei monopoli di Stato” (AAMS).In Switzerland, the Comlot, the independent commission established on the cantonal level, is responsible for licensing new games and monitoring the sports betting sector, but cannot license operators. In Germany, the regulators are established on the level of the Länder and take various forms. In Bavaria, for example, the monitoring body is the Staatliche Lotterieverwaltung which is part of the State’s administration.

References

• Amit Anand Chaudhary,Can betting in sports be legalised? SC agrees to examine issue – Times of India, The Times of India (2017),http://timesofindia.indiatimes.com/sports/cricket/news/can-betting-in-sports-be-legalised-sc-agrees-to-examine-issue/articleshow/58421201.cms.
• Jatin Gandhi, Casinos, sports betting to be legalised in India? Law panel examining the issue, http://www.hindustantimes.com/(2017),http://www.hindustantimes.com/india-news/casinos-sports-betting-to-be-legalised-in-india-law-panel-examining-the-issue/story-RUrXc21Q94LTQKhrHJlxTO.html .
• REGULATING SPORTS BETTING IN INDIA,FREQUENTLY ASKED QUESTIONS, 1-4, http://ficci.in/sector/37/add_Docs/ficci-faq-on-sports-betting.pdf (last visited Jul 14, 2017).
• Lea Meyer & Jean Patrick Villeneuve, What are the odds? National gambling regulation and the globalised betting industry org(2017),http://www.irsv.org/index.php?option=com_content&view=article&id=146%3Awhat-are-the-odds-national-gambling-regulation-and-the-globalised-betting-industry&catid=73%3Anumero-7–controler-et-punir&lang=en (last visited Jul 14, 2017).
• Heena Chheda & Mirat Patel,Gambling And Betting Laws In India, 2, http://www.hariani.co.in/newsletters/31207_August_7_2013.pdf (last visited Jul 14, 2017).

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